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In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators11/3/2005
rida Court Education Council. The course should specifically focus on the areas where the Code of Judicial Conduct or the Florida Rules for Certified and Court-Appointed Mediators could be violated.
In considering whether service as a senior judge should necessarily preclude a retired judge from conducting mediations, the Committee directly addressed and evaluated the potential appearance of impropriety, which has been a major concern of this Court. However, the Committee reported that it had learned of only one instance in the past ten years of practice in Florida of a specific ethical complaint alleging a violation by a senior judge acting as a mediator. After thoroughly considering and debating the issue, the Committee concluded that service as both a senior judge and a mediator should continue to be permitted but the Court should also adopt the safeguards outlined in Recommendation 1.
The recommended ethical and training requirements urged by the Committee are specially designed to avoid, by means of a calculated and candid education program, any appearance of or potential for impropriety by ensuring that the impartiality of a senior judge who serves as a mediator is not called into question by any conduct of the senior judge-mediator. The recommended safeguards also address several potential concerns: (1) the self-determination of the parties could be compromised when a senior judge serves as a mediator; (2) the senior judge assignment might inappropriately create an advantage in obtaining mediation business for a senior judge or any mediation group with whom that senior judge associates; (3) the senior judge could be influenced in his or her judicial duties to favor potential mediation clients; and (4) the attorneys at mediation would be more deferential toward the mediator in anticipation of appearing before the mediator subsequently serving in a judicial capacity.
After considering the Committee's report, reviewing the comments received, and hearing oral argument, we approve Recommendation 1 and each of the safeguards proposed as discussed in more detail below.
Recommendation 1(A)
Senior judges who mediate must be certified mediators pursuant to Rule 10.100, Florida Rules for Certified and Court-Appointed Mediators.
The Committee points out that currently there is no official requirement that a senior judge who wishes to serve as a mediator also be qualified as a certified mediator under the Florida Rules for Certified and Court-Appointed Mediators. The Committee urges us to impose a certification requirement that would subject senior judge-mediators to the educational and ethical requirements of the Rules for Certified and Court-Appointed Mediators. The Committee concluded that requiring formal certification under the rules would ensure that senior judges who begin mediating after years on the bench are adequately trained in fundamental principles for doing mediation, as well as ethical issues they will face as mediators, including issues that could arise while serving in their dual roles as judge and mediator. Moreover, a senior judge who is a certified mediator will also be subject to the ethical rules and disciplinary system established for certified mediators. See Fla. R. Med. 10.200-10.900.
Although the Committee notes that significant ethical problems do not currently exist, we agree with the Committee that potential conflicts can be further avoided by requiring senior judges to receive adequate training and education on mediation and by requiring compliance with both judicial and mediator ethical requirements.
In order to implement Recommendation 1(A), we adopt proposed new Canon 5F(2) of the Code
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