(a) Submission and referral of inquiries and complaints to the complaint coordinator.
All inquiries and complaints should be submitted or referred to the complaint coordinator.
(b) Acknowledgment of complaint.
The complaint coordinator must send the complainant a written acknowledgment that the court has received the complaint.
(c) Preliminary review and disposition of complaints.
The complaint coordinator must conduct a preliminary review of all complaints to determine whether the complaint can be informally resolved or closed, or whether the complaint warrants investigation.
(d) Procedure for complaints not resolved through the preliminary review.
The following procedures are required only if a complaint is not resolved or closed through the preliminary review.
(1) Mediator's notice and opportunity to respond
The mediator must be given notice of the complaint and an opportunity to respond.
(2) Investigation and recommendation
(A) Except as provided in (B), the complaint must be investigated and a recommendation concerning court action on the complaint must be made by either an individual who has experience as a mediator and who is familiar with the rules of conduct stated in article 2 or a complaint committee that has at least one such individual as a member.
(B) A court with eight or fewer authorized judges may waive the requirement in (A) for participation by an individual who has experience as a mediator in conducting the investigation and making the recommendation if the court cannot find a suitable qualified individual to perform the functions described in (A) or for other grounds of hardship.
(3) Final decision
The final decision on the complaint must be made by the presiding judge or his or her designee, who must not be the complaint coordinator or an individual who investigated the complaint before its submission for final decision.
(e) Notice of final action.
(1) The court must send the complainant notice of the final action taken by the court on the complaint.
(2) If the complaint was not closed during the preliminary review, the court must send notice of the final action to the mediator.
The court must process complaints promptly at all stages.
(g) Records of complaints
The court should maintain sufficient information about each complaint and its disposition to identify any history or patterns of complaints submitted under these rules.
Rule 3.869 adopted effective July 1, 2009, effective date extended to January 1, 2010.
Advisory Committee Comment
Judicial Council staff have developed model local rules that satisfy the requirements of this rule. These model local rules were developed with input from judicial officers, court administrators, alternative dispute resolution (ADR) program administrators, court-program mediators, and public commentators and are designed so that they can be readily adapted to the circumstances of individual courts and specific complaints. Courts are encouraged to adopt rules that follow the model rules, to the extent feasible. Courts can obtain copies of these model rules from the Judicial Council's civil ADR program staff.
Subdivision (a)..Coordination of inquiries and complaints by a person knowledgeable about mediation is important to help ensure that the requirements of this article are followed and that mediation confidentiality is preserved.
Subdivision (c)..Courts are encouraged to resolve inquiries and complaints about mediators using the simplest, least formal procedures that are appropriate under the circumstances, provided that they meet the requirements stated in this article.
Most complaints can be appropriately resolved during the preliminary review stage of the complaint process, through informal discussions between or among the complaint coordinator, the complainant, and the mediator. Although complaint coordinators are not required to communicate with the mediator during the preliminary review, they are encouraged to consider doing so. For example, some complaints may arise from a misunderstanding of the mediator's role or from behavior that would not violate the standards of conduct. These types of complaints might appropriately be addressed by providing the complainant with additional information or by informing the mediator that certain behavior was upsetting to a mediation participant.
The circumstances under which a complaint coordinator might informally resolve or close a complaint include, for example, when (1) the complaint is withdrawn; (2) no violation of the rules of conduct appears to have occurred; (3) the alleged violation of the rules of conduct is very minor and the mediator has provided an acceptable explanation or response; and (4) the complainant, the mediator, and the complaint coordinator have agreed on a resolution. In determining whether to close a complaint, the complaint coordinator might also consider whether there are or have been other complaints about the mediator.
Subdivision (d)..At the investigation and recommendation stage, all courts are encouraged to consider using a complaint committee comprised of members with a variety of backgrounds, including at least one person with experience as a mediator, to investigate and make recommendations concerning those rare complaints that are not resolved during the preliminary review.
Courts are also encouraged to have a judicial officer who is knowledgeable about mediation, or a committee that includes another person who is knowledgeable about mediation, make the final decision on complaints that are not resolved through the preliminary review.