Certification of Neutrals: A Step Forward or a Misguided Label?

The name Tom Girardi remains synonymous with scandal in legal circles, despite his once-storied career and his high-profile associations. Known for his involvement in the $460 million Pacific Gas & Electric settlement (which inspired the film Erin Brockovich) and his marriage to reality television figure Erika Girardi (also known as Erika Jayne), Girardi’s fall from grace has left a wide footprint—not only in California’s legal community but increasingly in national discussions about oversight, ethics, and accountability.

As Girardi’s various cases have played out in courts across the country, one troubling pattern emerged: multiple neutral third parties, including private arbitrators and mediators—many of them retired judges—were accused of failing to uphold basic ethical standards or, worse, enabling misconduct. In response, the California legislature enacted Senate Bill 940, which, among other provisions, introduces a certification system for neutrals in the state.

But the creation of this certification system raises important questions: Does certification improve quality and public confidence in ADR processes? Or does it create a false sense of security—one that may actually undermine trust by implying a level of rigor or competence that is not meaningfully enforced?

What SB 940 Does—and Doesn’t Do

California Senate Bill 940 was passed in response to the Girardi fallout and reflects growing concern about the lack of oversight in private dispute resolution. The bill permits private ADR neutrals to be certified under a voluntary program, provided they agree to comply with a code of conduct and meet specified criteria.

The intent is clear: to strengthen ethical safeguards, increase public confidence, and encourage uniformity in ADR standards. Certification is optional but comes with the expectation that certified neutrals will adhere to standards similar to those required in court-connected ADR programs.

However, there’s a catch: the certification process does not require actual experience in mediation or arbitration. In other words, a neutral may be “certified” even without having mediated or arbitrated a single case. This disconnect between the label and the underlying qualifications has prompted a fair amount of criticism.

Semantics Matter: Certification vs. Registration

Critics have pointed out that the term “certification” carries strong connotations—particularly in a professional setting. It implies that the neutral has been vetted, tested, or otherwise evaluated for competence. In most industries, certification implies an assurance of quality.

But in the context of California’s new system, the word may be misleading. As one Daily Journal article noted, “registered” may be a more appropriate term. It would more accurately reflect the voluntary and procedural nature of the program—without creating unrealistic expectations about skill or experience.

This is not merely a matter of semantics. If parties believe that a certified neutral has demonstrated actual proficiency or undergone a rigorous vetting process, they may place unwarranted trust in that person’s ability to manage complex or sensitive matters. That trust, once violated, can damage the reputation of the broader ADR system.

The Ohio Approach: No Certification by Design

By contrast, the Ohio Supreme Court has taken a different approach. In Ohio, there is no certification system for mediators or arbitrators. Instead, the state’s highest court has explicitly stated that:

“There is no particular training or educational credential that ensures a good neutral.”

This position reflects a pragmatic understanding of dispute resolution. While training and ethical standards are critical, there is no singular path—academic or experiential—that guarantees effectiveness as a neutral. Qualities such as listening skills, judgment, neutrality, and procedural fairness are difficult to quantify or certify.

Ohio’s model emphasizes local court rules, continuing education, and performance-based oversight. Many jurisdictions within the state maintain rosters of approved neutrals, but there is no attempt to impose a centralized certification regime that risks being either too loose or too rigid.

The Tension Between Oversight and Flexibility

These contrasting models—California’s voluntary certification system and Ohio’s decentralized framework—highlight a deeper tension in the ADR field. How should courts and regulatory bodies balance the need for quality assurance with the flexibility that makes private ADR so effective?

Arguments in Favor of Certification:

• Provides a baseline ethical framework

• Improves transparency for consumers and parties

• Signals seriousness and professionalism

• Helps filter out bad actors or unethical practitioners

Arguments Against:

• Certification may create a false sense of expertise

• Risk of bureaucratizing a process valued for flexibility

• Could be co-opted by private ADR firms to market credentials without substance

• Fails to capture intangible qualities that make for a truly effective neutral

Ultimately, the success of any oversight system depends less on labels and more on enforcement, training, feedback, and accountability. Without meaningful standards and consequences, certification may become little more than a checkbox.

What Parties Should Look for in a Neutral

Whether selecting a neutral in California, Ohio, or elsewhere, parties should look beyond labels. A few guiding questions include:

• What actual experience does the neutral have in the relevant subject matter?

• Can the neutral demonstrate impartiality and procedural fairness?

• What do past parties or counsel say about their performance?

• Are ethical guidelines clearly communicated and enforced?

It’s also worth asking whether the neutral is part of any court-connected program, whether they engage in continuing education, and whether they operate with transparency about their process and procedures.

Certification can be a helpful signal—but it should not be the only one.

The Future of ADR Oversight

As ADR continues to expand into nearly every area of legal practice—business, consumer, tort, employment, and even criminal matters—jurisdictions will need to grapple with how best to maintain integrity in the field. Whether through voluntary codes, certification, or centralized registries, the goal should remain consistent: ensuring that neutrals are ethical, capable, and committed to the fair resolution of disputes.

The Girardi scandal was a wake-up call not just about individual wrongdoing, but about the systemic gaps that allowed that conduct to persist. Addressing those gaps thoughtfully—without creating bureaucratic hurdles or misleading labels—is the next frontier for ADR oversight.

Trusted. Balanced. Resolution Driven.

At Nationwide ADR, neutrality is more than a professional identity—it is a guiding principle. With deep experience across mediation, arbitration, early dispute resolution, and special master appointments, the firm combines subject matter expertise with ethical diligence and procedural clarity.

Whether a matter involves high-stakes business disputes, tort claims, employment litigation, or consumer arbitration, Nationwide ADR is committed to Unlocking Solutions for Demanding Cases—with integrity, judgment, and professionalism that transcends labels.

To learn more about neutral selection, ethical frameworks, or to explore ADR options, visit NationwideADR.com.