You might consider this a strange question since the definition of “mediation” is “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement” (California Evidence Code 1115(a)). Notice that the operable words are “neutral” and “facilitate.” These imply that the mediator neither advises nor advocates but simply assists the disputants in deciding what is best for them.
While some states agree that mediation is not the practice of law, California disagrees. Many years ago, the State Bar enacted Rule 2.30, which provides:
“(A) …
“(B) No licensee practicing law, or occupying a position in the employ of or rendering any legal service for an active licensee, or occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law, shall be enrolled as an inactive licensee. “
(C) Notwithstanding (A) and (B) a licensee serving for a court or any other governmental agency as a referee, hearing officer, court commissioner, temporary judge, arbitrator, mediator or in another similar capacity is eligible for enrollment as an inactive licensee if he or she does not otherwise engage in any of the activities listed in (B) or hold himself or herself out as being entitled to practice law.”
Consequently, a lawyer who happens to be a mediator, even one who is facilitative or transformative, is engaged in law practice and must maintain active membership in the State Bar.
As you might expect, this did not sit well with everyone. Someone finally sued. In Morris S. Getzels vs The State Bar of California, Case No. B338089 (filed June 26, 2025), the plaintiff, Mr. Getzels, appealed from a judgment dismissing his complaint by the trial court. In his complaint, he challenged the constitutionality of this bar rule because it violates the Equal Protection Clause of the U.S. Constitution and the California Constitution. He argued that it treated inactive licensees differently from everyone else and impinged on his right to contract. He also claimed there was no rational reason for the rule. The Plaintiff had been a part-time arbitrator and mediator while also practicing law. He wished to retire from law practice yet continue to mediate and arbitrate. Thus, like so many others, he wanted to go “inactive” but was told he could not. (Id. at 6-7)
The appellate court agreed with the trial court, finding that there was a rational basis for Rule 2.30(b). The Court discussed a staff report prepared for the State Bar in 2005, which noted that the annual fees paid by active members are used to administer the regulatory functions of the State Bar (i.e., discipline). Truly inactive members no longer associate with the practice of law and thus will not cause the regulatory functions of the State Bar to come into play. (Id. at 3-4.)
The staff report went on to note that mediators and arbitrators do not “… distance themselves from the practice of law” (Id. at 3-4) Rather, they may be called upon to “give legal advice or counsel” or “to examine the law or pass upon the legal effect of any act, document or law. “ (Id. at 4.) Because of their close relationship with the law, the report noted that there may well be complaints to the state bar, or other aspects of the State Bar’s jurisdiction may be called upon.
Thus, the appellate court held that the rule has a rational basis and that mediators and arbitrators should be required to maintain an active status and pay dues. (Id. at 4, 9-18.)
Many of us believe that the real reason behind this rule is simply to allow the State Bar to raise revenue. In light of the many non-attorney mediators and arbitrators, the rule makes no sense. Are they then engaging in the unauthorized practice of law? Many would argue “no”
So, the debate will rage on and be food for thought the next time you appear before a mediator or arbitrator: Is he/she practicing law? Is he/she licensed to practice law? Or is he/she engaging in the unauthorized practice of law?
…. Just something to think about.
Ps. I will be on vacation next week and so look for a new post in 2 weeks!
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