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In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators11/3/2005
We have for consideration the Amended Final Report on Senior Judges as Mediators (Report) filed by the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (Committee). The Report contains recommendations and proposed amendments to various rules of procedure and provisions of the Code of Judicial Conduct that the Committee believes are necessary to implement its recommendations. We have jurisdiction. See art. V, ยง 2(a), Fla. Const. We approve the majority of the Committee's recommendations and adopt the Committee's proposed amendments with minor modifications explained below.
BACKGROUND
In In re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 1994), this Court adopted a new Code of Judicial Conduct, which in Section B of the provision entitled "Application of the Code of Judicial Conduct" authorizes senior judges to serve as mediators. In authorizing the practice, the Court recognized that there was concern about "the propriety of a senior judge acting as both a mediator and an assigned senior judge." Id. at 1039. In response to that concern, the Court modified Section B as originally proposed and its commentary "to more fully explain when and under what circumstances a senior judge may be a mediator, id.," and we further explained that the Court would continue to monitor the application of the new provisions in light of the Court's concerns. 643 So. 2d at 1039.
In November 2004, in response to a request by the Court to evaluate the current practice of senior judges serving as mediators, the Committee filed the report and recommendations under consideration here, together with proposed amendments to various rules of procedure and the Code of Judicial Conduct, which the Committee determined were necessary to implement its recommendations. The proposed amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Juvenile Procedure, the Florida Rules for Certified and Court-Appointed Mediators, the Florida Family Law Rules of Procedure, and the Code of Judicial Conduct were published for comment. Three comments were received and the Court subsequently conducted oral argument on the Committee's report and recommendations.
REPORT
Consistent with this Court's directive, the focus of the Committee's report concerns the issue of senior judges continuing to serve as mediators and the related issue of whether further requirements and safeguards should be imposed if the practice is to be continued. In reaching its conclusions and developing its recommendations, the Committee reviewed the history of and evaluated the current status of the practice in Florida; it surveyed senior judges identified as mediators and considered the ethical and practical implications of such dual service; and it reviewed a survey of state regulation of retired judges serving as arbitrators and mediators conducted by the National Center for State Courts, which found Florida to be among the clear majority of states that permit retired judges to serve as mediators or arbitrators while on temporary judicial assignment or while eligible for service on the bench. See Nat'l Ctr. for State Courts, Regulation of Retired Judges Serving as Arbitrators and Mediators (1999).
In evaluating the current status of senior judges serving as mediators in Florida, the Committee specifically considered the potential for ethical conflict in a senior judge serving as a mediator and other potential adverse consequences of such dual service. For example, the Committee determined that a senior judge's service as a mediator could potentially result in various violations of the Code of Judicial Conduct. The Committee cited
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