A person who has participated in a complaint proceeding or otherwise received information about the substance of a complaint, other than information that is publicly disclosed under rule 3.871(d), must not subsequently hear or determine any contested issue of law, fact, or procedure concerning the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation as a judge, an arbitrator, a referee, or a juror, or in any other adjudicative capacity, in any court action or proceeding.
Rule 3.872.Disqualification from subsequently serving as an adjudicator
Division 8. Alternative Dispute Resolution · Chapter 3. General Rules Relating to Mediation of Civil Cases · Article 3. Requirements for Addressing Complaints About Court-Program Mediators · Last amended 2010 · Last verified July 29, 2026
In one sentenceRule 3.872 disqualifies anyone who took part in a mediator complaint proceeding, or otherwise learned its confidential substance, from later acting as judge, arbitrator, referee, juror, or in any other adjudicative role over the underlying dispute or any related dispute arising from that mediation.
Full Text of Rule 3.872
Plain-English Summary
Rule 3.872 draws a firm line between the complaint process and any later fight over the underlying case. Anyone who took part in investigating or deciding a complaint about a mediator, or who otherwise learned what the complaint was really about, cannot come back later and rule on that dispute — not as the judge, not as an arbitrator, not as a referee, not as a juror, and not in any other decision-making role.
The disqualification reaches past the exact case, too: it covers any other dispute that traces back to the same mediation. The concern is that a person exposed to confidential complaint information — communications that would otherwise stay protected under the mediation privilege — might be influenced by what came up in the complaint, whether or not that influence is conscious, when deciding the case on the merits.
The one carve-out is information that was properly made public after the decision on a complaint, under rule 3.871’s limited disclosure provision. Learning only that kind of information does not trigger disqualification, because it never included confidential mediation communications in the first place.
Advisory Committee Comment
The following comment is published by the Judicial Council of California alongside the rule itself — not commentary from this site.
Persons who participated in a complaint proceeding are prohibited from subsequently adjudicating the dispute that was the subject of the underlying mediation or any other dispute that arises from the mediation because they may have learned of confidential mediation communications that were disclosed in the complaint proceeding or may have been influenced by what transpired in that proceeding. Because the information that can be disclosed publicly under rule 3.871(d) is limited and excludes mediation communications, it is unnecessary to disqualify persons who received only publicly disclosed information from subsequently adjudicating the dispute.
Frequently Asked Questions
Can a judge who reviewed a mediator complaint later decide the underlying case?
No. Rule 3.872 disqualifies anyone who participated in the complaint proceeding, or learned its confidential substance, from later adjudicating that dispute or any related dispute from the same mediation.
Does this disqualification apply only to judges?
No. It reaches anyone acting in an adjudicative role — including an arbitrator, a referee, or a juror — not just a sitting judge.
Is there any information a person can learn without becoming disqualified?
Yes. Information that rule 3.871 allows to be publicly disclosed after a complaint decision does not trigger disqualification, since it never reveals confidential mediation communications.
Amendment History
Rule 3.872 amended and renumbered effective July 1, 2009, effective date extended to January 1, 2010; adopted as rule 1622.3 effective January 1, 2006; previously amended and renumbered as rule 3.868 effective January 1, 2007.
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
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