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California Rules of Court
Rule 3.850 - 3.868 Ethical Standars
for Mediators
Rule 3.850 Purpose and function
Rule 3.850 amended and renumbered effective January 1, 2007; adopted as rule 1620 effective January 1, 2003. Rule 3.851 Application
Rule 3.851 amended and renumbered effective January 1, 2007; adopted as rule 1620.1 effective January 1, 2003. Advisory Committee Comment Subdivision (d). Although these rules do not apply to them, judicial officers who serve as mediators in their courts' mediation programs are nevertheless encouraged to be familiar with and observe these rules when mediating, particularly the rules concerning subjects not covered in the Code of Judicial Ethics such as voluntary participation and self-determination. Rule 3.852 Definitions As used in this article, unless the context or subject matter requires otherwise: (1) "Mediation" means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. (2) "Mediator" means a neutral person who conducts a mediation. (3) "Participant" means any individual, entity, or group, other than the mediator taking part in a mediation, including but not limited to attorneys for the parties. (4) "Party" means any individual, entity, or group taking part in a mediation that is a plaintiff, a defendant, a cross-complainant, a cross-defendant, a petitioner, a respondent, or an intervenor in the case. Rule 3.852 amended and renumbered effective January 1, 2007; adopted as rule 1620.2 effective January 1, 2003. Advisory Committee Comment The definition of "mediator" in this rule departs from the definition in Evidence Code section 1115 (b) in that it does not include persons designated by the mediator to assist in the mediation or to communicate with a participant in preparation for the mediation. However, these definitions are applicable only to these rules of conduct and do not limit or expand mediation confidentiality under the Evidence Code or other law. The definition of "participant" includes insurance adjusters, experts, and consultants as well as the parties and their attorneys. Rule 3.853 Voluntary participation and self-determination A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must: (1) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties; (2) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and (3) Refrain from coercing any party to make a decision or to continue to participate in the mediation. Rule 3.853 amended and renumbered effective January 1, 2007; adopted as rule 1620.3 effective January 1, 2003. Advisory Committee Comment Voluntary participation and self-determination are fundamental principles of mediation that apply both to mediations in which the parties voluntarily elect to mediate and to those in which the parties are required to go to mediation in a mandatory court mediation program or by court order. Although the court may order participants to attend mediation, a mediator may not mandate the extent of their participation in the mediation process or coerce any party to settle the case. After informing the parties of their choices and the consequences of those choices, a mediator can invoke a broad range of approaches to assist the parties in reaching an agreement without offending the principles of voluntary participation and self-determination, including (1) encouraging the parties to continue participating in the mediation when it reasonably appears to the mediator that the possibility of reaching an uncoerced, consensual agreement has not been exhausted and (2) suggesting that a party consider obtaining professional advice (for example, informing an unrepresented party that he or she may consider obtaining legal advice). Conversely, examples of conduct that violate the principles of voluntary participation and self-determination include coercing a party to continue participating in the mediation after the party has told the mediator that he or she wishes to terminate the mediation, providing an opinion or evaluation of the dispute in a coercive manner or over the objection of the parties, using abusive language, and threatening to make a report to the court about a party's conduct at the mediation. Rule 3.854 Confidentiality (a) Compliance with confidentiality law
(b) Informing participants of confidentiality
(c) Confidentiality of separate communications; caucuses
(d) Use of confidential information
Rule 3.854 renumbered effective January 1, 2007; adopted as rule 1620.4 effective January 1, 2003. Advisory Committee Comment Subdivision (a). The general law concerning mediation confidentiality is found in Evidence Code sections 703.5 and 1115-1128 and in cases interpreting those sections. (See, e.g., Foxgate Homeowners' Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1; Rinaker v. Superior Court (1998) 62 Cal.App.4th 155; and Gilbert v. National Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240.) Rule 3.855 Impartiality, conflicts of interest, disclosure, and withdrawal (a) Impartiality
(c) Proceeding if there are no objections or questions concerning impartiality
(d) Responding to questions or concerns concerning impartiality
(e) Withdrawal or continuation upon party objection concerning impartiality
(f) Circumstances requiring mediator recusal despite party consent
Rule 3.855 amended and renumbered effective January 1, 2007; adopted as rule 1620.5 effective January 1, 2003. Advisory Committee Comment Subdivision (b). This subdivision is intended to provide parties with information they need to help them determine whether a mediator can conduct the mediation impartially. A mediator's overarching duty under this subdivision is to make a "reasonable effort" to identify matters that, in the eyes of a reasonable person, could raise a question about the mediator's ability to conduct the mediation impartially, and to inform the parties about those matters. What constitutes a "reasonable effort" to identify such matters varies depending on the circumstances, including whether the case is scheduled in advance or received on the spot, and the information about the participants and the subject matter that is provided to the mediator by the court and the parties. The interests, relationships, and affiliations that a mediator may need to disclose under (b) (1) (A) include: (1) prior, current, or currently expected service as a mediator in another mediation involving any of the participants in the present mediation; (2) prior, current, or currently expected business relationships or transactions between the mediator and any of the participants; and (3) the mediator's ownership of stock or any other significant financial interest involving any participant in the mediation. Currently expected interests, relationships, and affiliations may include, for example, an intention to form a partnership or to enter into a future business relationship with one of the participants in the mediation. Although (b) (1) specifies interests, relationships, affiliations, and matters that are grounds for disqualification of a judge under Code of Civil Procedure section 170.1, these are only examples of common matters that reasonably could raise a question about a mediator's ability to conduct the mediation impartially and, thus, must be disclosed. The absence of particular interests, relationships, affiliations, and section 170.1 matters does not necessarily mean that there is no matter that could reasonably raise a question about the mediator's ability to conduct the mediation impartially. A mediator must make determinations concerning disclosure on a case-by-case basis, applying the general criteria for disclosure under (b) (1). Attorney mediators should be aware that under the section 170.1 standard,
they may need to make disclosures when an attorney in their firm is serving or
has served as a lawyer for any of the parties in the mediation. Section 170.1
does not specifically address whether a mediator must disclose when another member
of the mediator's dispute resolution services firm is providing or has provided
services to any of the parties in the mediation. Therefore, a mediator must evaluate
such circumstances under the general criteria for disclosure under (b) (1) -that
is, is it a matter that, in the eyes of a reasonable person, could raise a question
about the mediator's ability to conduct the mediation impartially? (a) Compliance with court qualifications
(b) Truthful representation of background
(c) Informing court of public discipline and other matters
(d) Assessment of skills; withdrawal
Rule 3.856 renumbered effective January 1, 2007; adopted as rule 1620.6 effective January 1, 2003. Advisory Committee Comment Subdivision (d). No particular advanced academic degree or technical or professional experience is a prerequisite for competence as a mediator. Core mediation skills include communicating clearly, listening effectively, facilitating communication among all participants, promoting exploration of mutually acceptable settlement options, and conducting oneself in a neutral manner. A mediator must consider and weigh a variety of issues in order to assess whether his or her level of skill, knowledge, and ability is sufficient to make him or her effective in a particular mediation. Issues include whether the parties (1) were involved or had input in the selection of the mediator; (2) had access to information about the mediator's background or level of skill, knowledge, and ability; (3) have a specific expectation or perception regarding the mediator's level of skill, knowledge, and ability; (4) have expressed a preference regarding the style of mediation they would like or expect; or (5) have expressed a desire to discuss legal or other professional information, to hear a personal evaluation of or opinion on a set of facts as presented, or to be made aware of the interests of persons who are not represented in mediation. Rule 3.857 Quality of mediation process (a) Diligence
(b) Procedural fairness
(c) Explanation of process
(d) Representation and other professional services
(e) Recommending other services
(f) Nonparticipants' interests
(g) Combining mediation with other ADR processes
(h) Settlement agreements
(i) Discretionary termination and withdrawal
(j) Manner of withdrawal
Rule 3.857 amended and renumbered effective January 1, 2007; adopted as rule 1620.7 effective January 1, 2003. Advisory Committee Comment Subdivision (c). The explanation of the mediation process should include a description of the mediator's style of mediation. Subdivision (d). Subject to the principles of impartiality and self-determination, and if qualified to do so, a mediator may (1) discuss a party's options, including a range of possible outcomes in an adjudicative process; (2) offer a personal evaluation of or opinion on a set of facts as presented, which should be clearly identified as a personal evaluation or opinion; or (3) communicate the mediator's opinion or view of what the law is or how it applies to the subject of the mediation, provided that the mediator does not also advise any participant about how to adhere to the law or on what position the participant should take in light of that opinion. One question that frequently arises is whether a mediator's assessment of claims, defenses, or possible litigation outcomes constitutes legal advice or the practice of law. Similar questions may arise when accounting, architecture, construction, counseling, medicine, real estate, or other licensed professions are relevant to a mediation. This rule does not determine what constitutes the practice of law or any other licensed profession. A mediator should be cautious when providing any information or opinion related to any field for which a professional license is required, in order to avoid doing so in a manner that may constitute the practice of a profession for which the mediator is not licensed, or in a manner that may violate the regulations of a profession that the mediator is licensed to practice. A mediator should exercise particular caution when discussing the law with unrepresented parties and should inform such parties that they may seek independent advice from a lawyer. Subdivision (i). Subdivision (i) (2) is not intended to establish any new responsibility or diminish any existing responsibilities that a mediator may have, under the Americans With Disabilities Act or other similar law, to attempt to accommodate physical or mental disabilities of a participant in mediation. Rule 3.858 Marketing (a) Truthfulness
(b) Representations concerning court approval
(c) Promises, guarantees, and implications of favoritism
(d) Solicitation of business
Rule 3.858 renumbered effective January 1, 2007; adopted as rule 1620.8 effective January 1, 2003. Advisory Committee Comment Subdivision (d). This rule is not intended to prohibit a mediator from accepting other employment from a participant while a mediation is pending, provided that there was no express solicitation of this business by the mediator and that accepting that employment does not contravene any other provision of these rules, including the obligations to maintain impartiality, confidentiality, and the integrity of the process. If other employment is accepted from a participant while a mediation is pending, however, the mediator may be required to disclose this to the parties under rule 3.855. This rule also is not intended to prohibit a mediator from engaging in general marketing activities. General marketing activities include, but are not limited to, running an advertisement in a newspaper and sending out a general mailing (either of which may be directed to a particular industry or market). Rule 3.859 Compensation and gifts (a) Compliance with law
(b) Disclosure of and compliance with compensation terms
(c) Contingent fees
(d) Gifts and favors
Rule 3.859 amended and renumbered effective January 1, 2007; adopted as rule 1620.9 effective January 1, 2003. Advisory Committee Comment Subdivision (b). It is good practice to put mediation fee agreements in writing, and mediators are strongly encouraged to do so; however, nothing in this rule is intended to preclude enforcement of a compensation agreement for mediation services that is not in writing. Subdivision (d). Whether a gift, bequest, or favor "might reasonably raise a question concerning the mediator's impartiality" must be determined on a case-by-case basis. This subdivision is not intended to prohibit a mediator from accepting other employment from any of the participants, consistent with rule 3.858 (d). Rule 3.860 Attendance sheet and agreement to disclosure (a) Attendance sheet
(b) Agreement to disclosure
Rule 3.860 amended and renumbered effective January 1, 2007; adopted as rule 1621 effective January 1, 2006. Rule 3.865 Complaint procedure required (a) Court procedures required
(b) Actions court may take
Rule 3.865 amended and renumbered effective January 1, 2007; adopted as rule 1622 effective January 1, 2003; previously amended effective January 1, 2006. Rule 3.866 Designation of person to receive inquiries and complaints In each superior court that is required to establish a complaint procedure under rule 3.865, the presiding judge must designate a person who is knowledgeable about mediation to receive and coordinate the investigation of any inquiries or complaints about the conduct of mediators who are subject to rule 3.865. Rule 3.866 amended and renumbered effective January 1, 2007; adopted as rule 1622.1 effective January 1, 2006. Rule 3.867 Confidentiality of complaint procedures, information, and records (a) This rule's requirement that rule 3.865 complaint procedures be confidential is intended to:
(b) All procedures for receiving, investigating, and resolving inquiries or complaints about the conduct of mediators must be designed to preserve the confidentiality of mediation communications, including but not limited to the confidentiality of any communications between the mediator and individual mediation participants or subgroups of mediation participants. (c) All communications, inquiries, complaints, investigations, procedures, deliberations, and decisions about the conduct of a mediator under rule 3.865 must occur in private and must be kept confidential. No information or records concerning the receipt, investigation, or resolution of an inquiry or a complaint under rule 3.865 may be open to the public or disclosed outside the course of the rule 3.865 complaint procedure except as provided in (d) or as otherwise required by law. (Subd (c) amended effective January 1, 2007.) (d) The presiding judge or a person designated by the presiding judge for this purpose may, in his or her discretion, authorize the disclosure of information or records concerning rule 3.865 complaint procedures that do not reveal any mediation communications, including the name of a mediator against whom action has been taken under rule 3.865, the action taken, and the general basis on which the action was taken. In determining whether to authorize the disclosure of information or records under this subdivision, the presiding judge or designee should consider the purposes of the confidentiality of rule 3.865 complaint procedures stated in (a) (2) and (a) (3). (Subd (d) amended effective January 1, 2007.) (e) In determining whether the disclosure of information or records concerning rule 3.865 complaint procedures is required by law, courts should consider the purposes of the confidentiality of rule 3.865 complaint procedures stated in (a). Before the disclosure of records concerning procedures under rule 3.865 is ordered, notice should be given to any person whose mediation communications may be revealed. (Subd (e) amended effective January 1, 2007.) Rule 3.867 amended and renumbered effective January 1, 2007; adopted as rule 1622.2 effective January 1, 2006. Advisory Committee Comment See Evidence Code sections 1115 and 1119 concerning the scope and types of mediation communications protected by mediation confidentiality. Subdivision (b). Private meetings, or "caucuses," between a mediator and subgroups of participants are common in court-connected mediations, and it is frequently understood that these communications will not be disclosed to other participants in the mediation. (See Cal. Rules of Court, rule 3.854 (c).) It is important to protect the confidentiality of these communications in rule 3.865 complaint procedures, so that one participants in the mediation does not learn what another participants discussed in confidence with the mediator. Subdivisions (c) - (e). The provisions of (c) - (e) that authorize the disclosure of information and records related to rule 3.865 complaint procedures do not create any new exceptions to mediation confidentiality. Information and records about rule 3.865 complaint procedures that would reveal mediation communications should only be publicly disclosed consistent with the statutes and case law governing mediation confidentiality. Evidence Code sections 915 and 1040 establish procedures and criteria for deciding whether information acquired in confidence by a public employee in the course of his or her duty is subject to disclosure. These sections may be applicable or helpful in determining whether the disclosure of information or records acquired by judicial officers, court staff, and other persons while receiving, investigating, or resolving complaints under rule 3.865 is required by law or should be authorized in the discretion of the presiding judge. Rule 3.868 Disqualification from subsequently serving as an adjudicator A person who has participated in or received information about the receipt, investigation or resolution of an inquiry or a complaint under rule 3.865 must not subsequently hear or determine any contested issue of law, fact, or procedure concerning the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation, as a judge, an arbitrator, a referee, or a juror, or in any other adjudicative capacity, in any court action or proceeding. Rule 3.868 amended and renumbered effective January 1, 2007; adopted as rule 1622.3 effective January 1, 2006. |
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