(a) Compliance with law A mediator must comply with any applicable requirements concerning compensation established by statute or the court.
Rule 3.859.Compensation and gifts
Division 8. Alternative Dispute Resolution · Chapter 3. General Rules Relating to Mediation of Civil Cases · Article 2. Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases · Last amended 2007 · Last verified July 29, 2026
In one sentenceThis rule requires mediators to follow applicable compensation laws, disclose their fees and charges in writing before the mediation starts, honor whatever fee agreement results, avoid tying their fee to the mediation’s outcome, and refuse gifts or favors that could reasonably call their impartiality into question.
Full Text of Rule 3.859
(b) Disclosure of and compliance with compensation terms Before commencing the mediation, the mediator must disclose to the parties in writing any fees, costs, or charges to be paid to the mediator by the parties. A mediator must abide by any agreement that is reached concerning compensation.
(c) Contingent fees The amount or nature of a mediator’s fee must not be made contingent on the outcome of the mediation. (Subd (c) amended effective January 1, 2007.)
(d) Gifts and favors A mediator must not at any time solicit or accept from or give to any participant or affiliate of a participant any gift, bequest, or favor that might reasonably raise a question concerning the mediator’s impartiality.
Plain-English Summary
Money is one of the more obvious places a mediator’s neutrality can come under strain, and Rule 3.859 addresses it head-on. Beyond following whatever statute or court requirement governs compensation, the mediator has to put fees, costs, and charges in writing before the mediation begins, so parties know what they are agreeing to pay before they start. Once that agreement is in place, the mediator has to stick to it.
The rule draws a hard line against contingent fees: the amount or nature of a mediator’s compensation cannot depend on how the mediation turns out. A mediator paid more for a settlement than a stalemate has an obvious incentive problem, and the rule closes that off entirely.
Gifts get similar treatment. A mediator cannot solicit, accept, or give a gift, bequest, or favor connected to a participant or someone affiliated with a participant, if that exchange could reasonably make someone question the mediator’s impartiality. What counts as reasonably questionable depends on the circumstances, but the underlying concern is the same one that runs through the whole code — anything that could tilt a mediator’s neutrality, or make it look tilted, needs to be kept out of the process.
Advisory Committee Comment
The following comment is published by the Judicial Council of California alongside the rule itself — not commentary from this site.
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).
Frequently Asked Questions
Does a mediator have to put their fees in writing?
Yes. Rule 3.859 requires the mediator to disclose in writing, before the mediation begins, any fees, costs, or charges the parties will pay.
Can a mediator charge more if the parties reach a settlement?
No. The rule prohibits making the amount or nature of a mediator’s fee contingent on the outcome of the mediation.
Can a mediator accept a gift from a participant after mediation ends?
Only if it would not reasonably raise a question about the mediator’s impartiality. The rule bars gifts, bequests, or favors to or from a participant or their affiliate whenever the exchange could reasonably cast doubt on the mediator’s neutrality, and that determination is made case by case.
Amendment History
Rule 3.859 amended and renumbered effective January 1, 2007; adopted as rule 1620.9 effective January 1, 2003.
Source & verification. Rule text is reproduced verbatim from
the Judicial Council of California. Adopted by the Judicial Council of California.
Last verified July 29, 2026.
· Official source
Also known as: mediator fee disclosure requirement Californiacan mediator accept giftscontingent fee mediator prohibitedmediation compensation rules California