ELLIS & ASSOCIATESTHE DISPUTE RESOLUTION FIRMMediation & ArbitrationBack to website

ELLIS & ASSOCIATES / PROFESSIONAL STANDARDS

Neutral process.
Clear standards.

Ellis & Associates is a dispute resolution firm providing mediation and arbitration through an independent, impartial process. In mediation, the neutral facilitates the parties’ efforts to reach a voluntary resolution. In arbitration, the neutral determines the issues properly submitted under the governing agreement and applicable law. Legal advice and representation remain the separate role of a participant’s own counsel. The authorities below explain the California framework for these distinct professional functions.

Our mediators and arbitrators serve independently and impartially, while participants remain free to obtain independent legal counsel concerning their individual rights and obligations. Ellis & Associates provides mediation services for individuals, partnerships, privately held businesses, nonprofit organizations, and large corporations, addressing disputes ranging from modest claims to complex matters involving significant financial stakes. The process, neutral’s qualifications, scope, and terms of engagement are confirmed before a matter is accepted.

Our role as an alternative dispute resolution practice

Ellis & Associates is a California alternative dispute resolution practice providing mediation and arbitration services to individuals, businesses, organizations, professionals, and other participants seeking an independent process for resolving disputes. Our function is neutral rather than representative, and we do not enter an ADR matter as an advocate for either side. In mediation, we assist participants in attempting to reach their own voluntary resolution, while in arbitration the appointed arbitrator acts as an impartial decision maker concerning the matters properly submitted for determination. Our role is therefore fundamentally different from the role of an attorney representing a client, and no participant becomes a legal client of Ellis & Associates merely by retaining the firm for mediation or arbitration services.

Neutrality and independence

Ellis & Associates maintains independence, impartiality, procedural fairness, and equal treatment of participants. California's Ethics Standards for Neutral Arbitrators provide that an arbitrator "must maintain impartiality toward all participants in the arbitration at all times," and California Rule of Court 3.855 similarly requires impartiality from mediators subject to the court connected mediation rules. Ellis & Associates adopts these principles as standards of professional conduct for its ADR practice, including privately retained matters when those court rules do not independently apply. A neutral is not aligned with the claimant, respondent, plaintiff, defendant, employer, employee, consumer, business, insurer, attorney, or any other participant in the dispute. (Cal. Rules of Court, Ethics Standards for Neutral Arbitrators, Standard 5; Cal. Rules of Court, rule 3.855.)

Licensed attorneys serving as neutrals

The professional license, education, or other qualifications of an individual neutral do not change the capacity in which that individual serves in an Ellis & Associates ADR matter. When a licensed attorney serves as a mediator or arbitrator through the practice, that individual serves as the neutral and not as legal counsel for either participant. California Rule of Court 3.857 expressly requires a covered mediator to inform participants that the mediator "will not represent any participant as a lawyer" during the mediation. Ellis & Associates adopts the same separation of roles throughout its mediation practice so that the existence of legal credentials within the practice does not create or imply legal representation. (Cal. Rules of Court, rule 3.857(d).)

California Rule of Professional Conduct 5.5 also provides that a California lawyer shall not knowingly assist another person in the unauthorized practice of law. Accordingly, any licensed attorney retained to serve as a neutral remains subject to that attorney’s individual professional obligations. Nothing about retaining a licensed attorney as a neutral authorizes another person to engage in the practice of law or changes the neutral nature of an ADR engagement. The firm's procedures are intended to preserve that distinction clearly for all participants. (Cal. Rules of Professional Conduct, rule 5.5.)

California Rule of Professional Conduct 2.4(b) requires a lawyer serving as a private third party neutral to inform unrepresented parties that the lawyer is not representing them. If the lawyer knows or reasonably should know that a party does not understand the neutral role, the lawyer explains how it differs from representing a client. These explanations form part of the engagement process alongside applicable mediation or arbitration requirements.

The mediator's function

A mediator facilitates communication, negotiation, problem solving, and potential settlement between participants but does not decide the dispute. California Rule of Court 3.853 states that mediation must support voluntary participation and self determination and requires the mediator to refrain from coercing a party into making a decision or continuing to participate. Under the professional standards adopted by Ellis & Associates, the participants remain responsible for deciding whether to resolve the dispute and what terms they will accept. A mediator may identify issues, ask questions, assist participants in examining possible outcomes, present possible settlement terms for discussion, and facilitate preparation of a settlement reflecting the parties' own decisions, but the mediator does not substitute the mediator's judgment for the participants' voluntary choices. (Cal. Rules of Court, rules 3.853, 3.857.)

Discussion of law during mediation

Legal issues frequently form part of the subject matter of a mediation, and discussion of those issues must remain within the neutral role and applicable professional licensing requirements. The advisory commentary to California Rule of Court 3.857 recognizes that a mediator who is qualified by training or experience may discuss possible adjudicative outcomes, offer a clearly identified personal evaluation, or communicate an opinion about what the law is or how it applies, subject to impartiality and party self determination. The commentary also explains that the rule does not determine what constitutes the practice of law and calls for caution when discussing legal issues, particularly with unrepresented parties. Ellis & Associates does not advise a participant how to comply with the law or what legal position to take and encourages independent legal advice when appropriate.

Procedural fairness in mediation

Ellis & Associates conducts mediation through a balanced process intended to provide every participant a meaningful opportunity to participate, communicate, and make decisions without coercion. California Rule of Court 3.857 defines procedural fairness for covered mediation as a balanced process in which each party has an opportunity to participate and make uncoerced decisions. The rule also makes clear that the mediator is not responsible for guaranteeing the substantive fairness of the agreement ultimately chosen by the participants. Ellis & Associates adopts that procedural standard as part of its general mediation practice while recognizing that the participants themselves remain responsible for the substantive terms of any settlement.

Mediation confidentiality

California mediation confidentiality is principally governed by Evidence Code sections 1115 through 1129 and related California authority. Evidence Code section 1119 provides, subject to statutory exceptions, that mediation communications and writings are protected from admissibility, discovery, and compelled disclosure in specified noncriminal proceedings, and subdivision (c) states that mediation communications, negotiations, and settlement discussions "shall remain confidential." Ellis & Associates will administer mediation in accordance with applicable California confidentiality law and will explain the confidentiality framework to participants at or before the beginning of the mediation process. Participants should nevertheless understand that confidentiality is governed by the actual statute and its exceptions rather than by an unlimited promise that nothing could ever lawfully be disclosed. (Cal. Evid. Code, §§ 1115 through 1129; Cal. Rules of Court, rule 3.854.)

California Evidence Code section 1121 also substantially restricts mediator reporting to courts and other adjudicative bodies concerning what occurred during mediation. Section 1122 establishes circumstances in which mediation communications or writings may become subject to disclosure by agreement or under other statutory conditions, while section 1123 addresses when a written settlement agreement reached through mediation may become admissible or subject to disclosure. Section 1125 establishes statutory rules concerning when mediation terminates for confidentiality purposes. Ellis & Associates therefore does not describe mediation confidentiality as absolute and instead follows the confidentiality protections and exceptions established by California law. Under Evidence Code section 1117(b)(2), that mediation confidentiality chapter does not apply to settlement conferences conducted pursuant to California Rule of Court 3.1380.

Mediation settlement agreements

A mediator may assist in recording settlement terms determined by the participants only to the extent permitted by applicable law. California Rule of Court 3.857(h), consistent with subdivision (d), permits a mediator to present possible settlement terms for discussion and assist with a written agreement when the assistance is confined to stating the settlement determined by the parties. That rule does not independently authorize services that constitute the practice of law or another licensed profession. Ellis & Associates does not use this function to provide legal advice, determine whether terms are legally advantageous, or replace independent counsel’s preparation or review of legal documents. Participants may obtain their own attorneys’ review of proposed settlement language before signing.

The arbitrator's function

Arbitration differs substantially from mediation because the arbitrator performs an adjudicative rather than facilitative role. California Code of Civil Procedure section 1281 recognizes the validity and enforceability of a written agreement to submit an existing or future controversy to arbitration, subject to grounds that may exist for revocation of a contract. The arbitrator may conduct hearings, consider evidence and argument, rule on procedural matters within the arbitrator's authority, interpret applicable law and contractual provisions, and decide the questions properly submitted for determination. An arbitrator's application or interpretation of law in deciding a dispute constitutes the performance of the neutral adjudicative function and does not create an attorney client relationship with either participant. (Cal. Code Civ. Proc., §§ 1281, 1282, 1282.2, 1283.4.)

Arbitration awards

California Code of Civil Procedure section 1283.4 requires an arbitration award to be in writing, signed by the arbitrators concurring in it, and to determine the questions submitted that are necessary to resolve the controversy. Ellis & Associates arbitrators will decide only those matters properly placed within the scope of the arbitration and the authority conferred by the applicable agreement and law. The neutral arbitrator does not act as an advocate for the prevailing or nonprevailing participant and does not guarantee that any particular participant will prevail. The decision results from the neutral adjudicative process rather than from legal representation of either side.

Arbitrator ethics

California Code of Civil Procedure section 1281.85 provides that a person serving as a neutral arbitrator under an arbitration agreement "shall comply with the ethics standards for arbitrators" adopted by the Judicial Council when that statute applies. Those standards establish minimum obligations concerning impartiality, disclosures, disqualification, gifts, future professional relationships, fairness of proceedings, communications, confidentiality, compensation, and marketing. Standard 13 further requires an arbitrator to conduct proceedings "fairly, promptly, and diligently" and recognizes the importance of giving each party an appropriate opportunity to participate. Ellis & Associates requires arbitrators serving in matters subject to these standards to comply with them and uses their principles as professional guidance where appropriate in other arbitration matters. (Cal. Code Civ. Proc., § 1281.85; Ethics Standards for Neutral Arbitrators, Standards 1 through 17.)

Arbitrator disclosures and conflicts

California imposes substantial disclosure obligations on neutral arbitrators. Code of Civil Procedure section 1281.9 requires a proposed neutral arbitrator to disclose matters that could cause a person aware of the facts to reasonably question the proposed arbitrator's ability to remain impartial, including specified relationships and grounds relating to judicial disqualification. Section 1281.91 establishes statutory procedures for disqualification, and Ethics Standards 7 through 10 provide additional requirements concerning disclosure, investigation of potentially disclosable matters, and disqualification. Ellis & Associates therefore requires appropriate conflict review and disclosure before and during arbitration and expects each neutral to disclose qualifying relationships, interests, affiliations, prior services, and other matters required by applicable law.

Failure to satisfy required disclosure obligations can have substantial consequences. Code of Civil Procedure section 1286.2 provides circumstances in which a court must vacate an arbitration award, including specified arbitrator misconduct, excess of authority, substantial procedural prejudice, and certain failures involving required disclosures or disqualification. Ellis & Associates therefore treats disclosure and impartiality requirements as substantive safeguards rather than administrative formalities. The integrity of the arbitration process requires both actual impartiality and compliance with applicable statutory disclosure obligations.

Arbitration confidentiality

Arbitration confidentiality should not be confused with California's statutory mediation confidentiality scheme. Arbitration may be subject to confidentiality obligations created by the arbitration agreement, applicable arbitration rules, protective orders, statutes, or other governing authority, but an arbitration does not automatically receive all of the protections contained in Evidence Code sections 1115 through 1129 merely because it is an ADR proceeding. Judicial Council Ethics Standard 15 separately prohibits an arbitrator from using or disclosing information received in confidence for personal advantage and restricts disclosure of an award before it has been given to all parties. Ellis & Associates will comply with all confidentiality requirements applicable to the particular arbitration and will not represent arbitration confidentiality as broader than the governing law and agreement actually provide.

Consumer and employment arbitration

California establishes additional requirements for certain consumer and employment arbitrations. Code of Civil Procedure sections 1281.97 and 1281.98 address payment of arbitration fees in specified matters, with deadlines, consequences, and any available relief governed by applicable law and controlling judicial decisions. Section 1284.3 establishes additional requirements concerning consumer arbitration costs and fee waivers for qualifying indigent consumers. Ellis & Associates will determine which specialized provisions govern a matter, including the effect of any applicable federal law, and structure billing and administration procedures accordingly.

A private arbitration company that administers or is otherwise involved in consumer arbitration may also become subject to Code of Civil Procedure section 1281.96, which requires specified consumer arbitration information to be collected and publicly reported at the intervals prescribed by statute. Section 1281.92 separately restricts a private arbitration company from administering consumer arbitrations when prohibited financial interests exist between the provider and a party or attorney. These requirements become particularly important when Ellis & Associates acts as the administering arbitration organization rather than merely supplying an individual neutral. The practice will apply these provider requirements whenever its activities bring a matter within the applicable statutory provisions.

Marketing and representation of qualifications

Ellis & Associates accurately describes the qualifications, education, training, experience, professional licenses, affiliations, and court appointments of its neutrals and does not imply credentials or governmental approval that do not exist. California Rule of Court 3.858 requires mediators subject to that rule to be truthful and accurate in marketing, prohibits guarantees of results, and prohibits statements implying bias toward one participant. Judicial Council Ethics Standard 17 similarly requires arbitrators to be "truthful and accurate" in marketing and prohibits representations directly or indirectly suggesting favoritism or a specific outcome. Ellis & Associates voluntarily follows those principles throughout its public communications and does not guarantee settlement, victory, recovery, dismissal, or any other particular result.

Fees and compensation

Compensation paid to an Ellis & Associates neutral is compensation for neutral ADR services and is not contingent upon which participant prevails or whether a settlement is reached. California Rule of Court 3.859 prohibits outcome contingent mediator fees for mediators governed by that rule and requires written disclosure of applicable fees, costs, and charges before mediation begins. California's Ethics Standards for Neutral Arbitrators separately regulate arbitrator compensation. Ellis & Associates will disclose applicable charges and compensation arrangements in writing before mediation begins or an arbitrator accepts appointment, as appropriate and will not structure neutral compensation so that the neutral has a financial incentive to produce a particular substantive result. (Cal. Rules of Court, rule 3.859; Ethics Standards for Neutral Arbitrators, Standard 16.)

Court connected mediation and private mediation

California Rules of Court 3.850 through 3.860 contain conduct requirements for specified court connected civil mediation programs. Rule 3.851 defines the circumstances in which those rules formally apply and therefore does not make every privately selected mediator automatically subject to every provision merely because litigation exists. Ellis & Associates nevertheless adopts the central principles reflected in those rules, including voluntary participation, impartiality, confidentiality, competence, procedural fairness, truthful marketing, and transparent compensation, as internal professional standards when consistent with governing law and the particular ADR engagement. When the firm or one of its neutrals serves through a court program, the neutral will additionally comply with the applicable Superior Court rules, local requirements, panel qualifications, orders, and program procedures. A private engagement does not itself establish court panel membership, eligibility for appointment, or authority to substitute a private session for a court ordered process.

No guarantee of outcome

ADR provides a structured process for resolving or deciding disputes, but it cannot guarantee a particular substantive result. A mediator cannot compel participants to enter into a voluntary settlement, and Ellis & Associates will not pressure a participant to agree to terms that the participant has not voluntarily accepted. An arbitrator may issue a binding or otherwise enforceable award when authorized by the governing arbitration agreement and applicable law, but the arbitrator must remain independent from the interests of either side. No statement by Ellis & Associates should be understood as a promise of settlement, recovery, victory, dismissal, a particular award, or any other predetermined outcome.

Participants should obtain their own professional advice

Participants remain responsible for obtaining independent legal, tax, accounting, financial, regulatory, insurance, or other professional advice appropriate to their circumstances. The role of Ellis & Associates is to provide the ADR process, not to replace the independent professional advisers of the participants. A participant may therefore consult independent counsel concerning legal rights, claims, defenses, settlement language, enforceability, consequences of an award, or any other matter requiring legal advice. The neutral's duty remains to the integrity and fairness of the ADR process rather than to the advancement of the legal interests of either participant.

Our professional standards

Ellis & Associates provides mediation and arbitration through an independent ADR framework designed to preserve impartiality, procedural fairness, confidentiality where applicable, informed participation, and respect for the governing law. In mediation, the neutral assists the participants in seeking their own voluntary resolution without becoming an advocate or decision maker. In arbitration, the neutral decides those matters properly submitted for determination without becoming legal counsel for either participant. In every matter, the defining principle is the same: Ellis & Associates serves the dispute resolution process as a neutral and does not provide legal representation or participant specific legal advice through the ADR engagement.