The role of the
mediator and arbitrator.

01 / MEDIATION

The role of the mediator

Under California Evidence Code section 1115(a), mediation is a process in which a neutral facilitates communication between disputing parties to assist them in reaching a mutually acceptable agreement. The mediator guides discussions, assists parties in examining disputed issues, and encourages constructive consideration of possible resolutions. The mediator does not impose a decision or compel a settlement, as the ultimate authority to resolve the dispute remains with the parties.

02 / ARBITRATION

The role of the arbitrator

Arbitration differs from mediation because the neutral arbitrator is authorized to evaluate the matters submitted and render a decision within the scope of the arbitration agreement. The arbitrator considers the evidence, applicable law, and arguments presented by the parties while maintaining independence and impartiality. Arbitration proceedings are governed, as applicable, by the California Arbitration Act (Code of Civil Procedure § 1280 et seq.), the parties' agreement, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.).

03 / PROFESSIONAL INDEPENDENCE

Professional independence and the role of legal counsel

The responsibilities of a mediator or arbitrator are distinct from those of an attorney representing a client. A neutral may facilitate negotiations, explain procedural matters, identify relevant considerations, and, where appropriate and legally permissible, provide neutral evaluations within the scope of the engagement. In Ellis & Associates' neutral engagements, the neutral does not establish an attorney client relationship with either party, provide individualized legal advice, advocate for a participant's legal position, or undertake legal representation.

This distinction preserves the integrity of the dispute resolution process and respects California's statutory framework governing the practice of law, including Business and Professions Code section 6125 and section 6126. Participants remain free to obtain independent advice and representation from licensed legal counsel concerning their rights, obligations, settlement agreements, and other legal considerations. Ellis & Associates maintains this separation between neutral dispute resolution services and legal representation as a fundamental principle of professional practice. The firm coordinates the process with the parties and, when represented, their independent legal counsel.

04 / STANDARDS & SAFEGUARDS

Impartiality, confidentiality, and procedural fairness

California law recognizes impartiality and the protection of appropriate confidential communications as important considerations in dispute resolution. Evidence Code sections 1115 through 1129 establish the statutory framework governing mediation confidentiality, including applicable exceptions, while Code of Civil Procedure section 1281.9 addresses disclosure requirements for neutral arbitrators. The California Rules of Court, rules 3.850 through 3.860, establish additional professional standards for qualifying court connected civil mediation programs, including impartiality, voluntary participation, competence, and procedural fairness.

Of particular importance, California Rules of Court, rule 3.857(d), distinguishes the responsibilities of a mediator from those of an attorney representing a party. Although those rules specifically govern court connected mediation programs within the scope of rule 3.851, the principles of professional independence and impartial conduct also inform the firm's approach to private dispute resolution engagements. The Judicial Council's Ethics Standards for Neutral Arbitrators in Contractual Arbitration provide further requirements for covered arbitration matters.