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In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators11/3/2005
Canon 1 (judges must uphold the integrity and independence of the judiciary), Canon 2 (judges must avoid the appearance of impropriety), Canon 4 (judges' quasi-judicial activities must not cast doubt on their impartiality), and Canon 5 (judges must regulate their extra-judicial activities and financial affairs to minimize the risk of conflict with their judicial duties) as possible areas of concern.
However, despite the potential for ethical issues to arise, the Committee reported it found "no published authority relating to complaints against senior judges serving as mediators." Report at 8. Further, the Committee reported that it found "no evidence that the Code of Judicial Conduct is not working properly in relation to the practice of senior judges serving as mediators." Id.
As to the Standards of Professional Conduct applicable to mediators, the Committee reported that ethical violations under those standards could also potentially occur when a senior judge serves as a mediator. The standards the Committee identified that could be implicated by this practice are Florida Rules for Certified and Court-Appointed Mediators 10.330(a) and (b) (Impartiality); 10.340(a), (b), and (c) (Conflicts of Interest); 10.360 (Confidentiality); 10.380 (Fees and Expenses); and 10.650 (Concurrent Standards). However, the Committee concluded that while "mediator ethical violations could occur, they are neither unavoidable nor substantial." Report at 8.
Hence, the Committee concluded that while there was a potential for ethical issues to arise when senior judges serve as mediators, there was no indication that such issues had actually arisen in Florida since this Court permitted the practice or that any substantial ethical problems had been reported.
RECOMMENDATIONS AND PROPOSED AMENDMENTS
The Committee's first recommendation is that senior judges should continue to be permitted to serve as mediators, subject to certain proposed additional ethical safeguards. The Committee's Recommendations 1 and 2 address ethical and training requirements for senior judges who serve as mediators and include implementing amendments to various procedural rules and the Code of Judicial Conduct. Recommendation 3 addresses reporting requirements for senior judge-mediators. The Committee's recommendations, the majority of which we approve, are outlined below, followed by a brief discussion of each recommendation and implementing amendments.
Recommendation 1
There should be no absolute prohibition against a senior judge serving as a mediator provided that ethical recommendations A-D below are adopted in the appropriate rules.
(A) Senior judges who intend to mediate should be required to be certified by the Supreme Court as mediators pursuant to Rule 10.100, Florida Rules for Certified and Court-Appointed Mediators.
(B) If a mediator who is a senior judge has presided over a case involving any party, attorney, or law firm in the mediation, the mediator should be obligated to disclose that fact prior to mediation.
(C) A senior judge should be required to disclose if the judge is being utilized or has been utilized as a mediator by any party, attorney, or law firm involved in the case pending before the senior judge. Absent express consent of all parties, a senior judge should be prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years.
(D) Any person who is or intends to be both a senior judge and a mediator should be required to attend a minimum of one judicial education course offered by the Flo
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