Mediator certification deserves to flatline

In 2024, the Legislature created a voluntary certification program for mediators, to be administered by the State Bar, through SB 940. The mediation establishment supported it wholeheartedly.

Now, the Legislature is considering a new bill, SB 574, to supply what certification obviously and necessarily requires: a procedure to decertify mediators who deserve it. Nobody gets any license or certification from the State of California carte blanche.

Here is what that proposed decertification procedure would require. Under new Business & Professions (B&P) Code § 6173(b)(2)(B), certified mediators, ADR providers and any attorneys involved would be required to turn over "all requested information, records, or communications" to State Bar investigators--"notwithstanding" the mediation confidentiality statutes, the lawyer-client privilege and the attorney work product doctrine.

Somehow, the idea of a decertification procedure that would allow the State Bar to investigate what actually happened surprised large swaths of the mediation establishment. Listservs are ablaze. Parts of that establishment are now asking whether they should abandon the whole certification enterprise because its decertification process would impinge on mediation confidentiality.

To that, I say, good. The whole certification apparatus should be abandoned. It was folly from the outset.

I need not prove that mediation confidentiality is sacred to make this point. For years, the mediation establishment has said so loudly and often: confidentiality is essential to the candor effective mediation requires. I will simply hold that establishment to its own words. If confidentiality is as vital as its defenders claim, then even the fairest and most careful decertification process--not merely some hypothetical worst case--should concern them far more than it apparently does.

This article lays out three features a decertification system for certified mediators must have--both to let the State Bar protect the public, and to let accused mediators defend themselves.

·        Fairness requires the State Bar to prove more than one bad act before stripping a mediator of certification. That means the State Bar must be able to re-examine the mediations which gave rise to other, previously-investigated complaints against that mediator.

·        Fairness must also require that the accused mediator have an equal opportunity to present evidence relating to previously-investigated matters on which the State Bar relies.

·        For this to work, evidence from previously-investigated matters must remain available indefinitely--so the State Bar can draw on it, potentially years later, to establish that a new complaint reflects a pattern rather than an isolated incident.

When we understand the full extent to which these necessary features invade mediation confidentiality, I believe the whole mediation establishment--and everybody else--will conclude the juice is not worth the squeeze and abandon support for this certification rigamarole entirely.

To get to this conclusion, we must first ask: what would it look like to have a decertification system which impinges as little as necessary on mediation confidentiality?

California already answers a version of this question for every other licensed profession. The answer is always the same: don't take away someone's livelihood over one bad day.

·        A doctor cannot be disciplined for negligence on the strength of a single act. It takes "repeated negligent acts," under B&P Code § 2234(c), before discipline can be imposed--typically established by combining multiple, independently-reported incidents, including the hospital peer-review reports mandatory under B&P Code § 805.

·        Contractors face the same rule. Correcting a single violation typically lets a contractor avoid discipline for that one violation. But under B&P Code § 7090.5, correcting each violation individually does not protect a contractor who has engaged in a repeated pattern of such violations--the Registrar may still discipline for the pattern, even though no single act, standing alone, ever resulted in discipline.

·        For negligence, a CPA can be disciplined only for "repeated negligent acts committed in the same or different engagements, for the same or different clients" (B&P Code § 5100(c)). The California Board of Accountancy's own Disciplinary Guidelines and Model Orders (16 Cal. Code Regs. § 98) build in aggravation and mitigation factors on top of that.

Discipline against mediators should follow suit. Evidence of one instance of misconduct should not be enough to end a career--unless the misconduct is so severe that it falls into the categories for which the State Bar can discipline lawyers after "one strike": moral turpitude, dishonesty, or corruption (B&P Code § 6106).

Of course, most complaints will not involve accusations that rise to that level. They will more likely involve complaints about judgment and technique. Picture a party to whom a mediator used vague or equivocal language to describe the other side's settlement authority--standard practice, done every day to convey helpful information while respecting the confidentiality of the other side's caucus--then concludes that he paid too much or took too little as a result, and accuses the mediator of bias or partiality. Is this a mediator who deserves decertification? Or simply one who used standard mediation techniques with someone who later developed settler's remorse? Assuming the State Bar finds this complaint worthy of investigation, evidence from this one sole case cannot justify decertification. Consistent with the way California treats every comparable licensee I have examined, only evidence from a pattern or series of cases can do the job.

What does that mean, practically? Suppose the State Bar opens an investigation into the caucus complaint above. If the complaint has merit, the State Bar must still determine whether it reflects a fluke or a pattern serious enough to justify decertification. To do that, it must look at other cases involving the same mediator.

This would not authorize a fishing expedition. In the other professions surveyed above, the disciplining authorities do not get to plow through everything a licensee has ever done. They may look back only at matters that already generated an investigated complaint. That is a deliberate, well-settled limitation, adopted for reasons of efficiency--not because a broader search would serve the truth any less. Mediators should get the benefit of that same settled policy.

This would come with a real price in terms of confidentiality. The State Bar could reopen any previously-investigated matter involving the accused mediator, even if long-ago closed with no action taken, for a purpose nobody anticipated.

And fairness requires that accused mediators have reciprocal rights. If the State Bar can build its case from a mediator's worst moments, culled from across an entire career, the mediator must have an equal right to respond in kind: to introduce evidence from those same previously-investigated matters the State Bar has placed at issue, to show that the caucus complaint, if it has merit, was the exception, not the rule. It would better serve truth-finding to let an accused mediator reach further still, into other closed matters the State Bar never raised. But that broader right does not exist in any of the other professions surveyed above, and Due Process may not require it here either. Fairness does require, though, that accused mediators at least have symmetry.

Anything less is not fair. It is a one-way ratchet. The State Bar assembles a prosecution out of cherry-picked cases. The mediator is left to defend against it with nothing but the one case on the table.

There is a further cost, and it never goes away. Every complaint the State Bar investigates pulls in not just accused mediators, but everyone who sat at the table with them--including participants who never complained about anything themselves. Once the confidentiality of any mediation is pierced pursuant to proposed B&P Code § 6173(b)(2)(B), it joins a permanent pool, available to be reopened for any future complaint, unrelated though it may be, against the same mediator, however many years later. And participants from that prior matter can be interviewed or even asked to testify.

Let's understand the full severity of this cost. Many matters get mediated precisely because the parties want greater confidentiality than courtroom litigation provides: #MeToo cases, cases involving allegations of fraud or other immoral conduct, cases involving allegations of racism in the workplace and elsewhere, and more. Parties who settled such cases years ago, and moved on, may find them reopened--not because of any complaint they made, not even because of any complaint arising out of their own case, but because a different party complained about the mediator in an unrelated case, years later. Whether you call the injury re-traumatization or anything else, the questions remain: Is this fair? Is this right?

None of this needed to happen.

Consider the evidence, or the absence of it, to support a certification program in the first place. Daniel Boorstin, who later served as Librarian of Congress, wrote in his 1962 book The Image about the difference between the "pseudo-event"-- manufactured, staged for effect -- and the "spontaneous event," which arises on its own and therefore serves as real evidence of something true. The mediation establishment sold certification to the Legislature and the State Bar as a response to a genuine public need.

But where is the spontaneous evidence of that need? There is no wave of litigation straining against Evidence Code § 1115 et seq. to bring malpractice claims against mediators. There is no documented epidemic of misleading advertising by mediators. There is no body of commentary -- not in the Daily Journal, not anywhere else I can find -- arguing that clients and counsel cannot figure out which mediator to hire without a State Bar credential to guide them. Absent that evidence, certification was a pseudo-event from the start: a solution staged to look like it answers a problem, when no one has shown a problem exists.

I want to be clear about why I wrote this article. I oppose certification in its entirety. What I have described are the full sacrifices of confidentiality which a certification and decertification system require.

This is not the ordinary cost of professional regulation--the kind every licensed profession simply absorbs. The mediation establishment has spent years insisting that confidentiality is not incidental to mediation, but the very thing that makes candor, and therefore mediation itself, possible. Held to that standard, these costs are not a manageable inconvenience. They are a direct assault on the one thing the establishment has always said makes mediation work.

The mediation establishment's own reaction to SB 574 has put mediator certification on life support. Now that the mediation establishment, the Legislature, and the legal profession as a whole can see the full invasion of mediation confidentiality which any decertification program must entail, it's time to pull the plug.