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In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators11/3/2005
of Judicial Conduct. The new canon requires a senior judge who serves as a mediator to be certified as a mediator pursuant to the Florida Rules for Certified and Court-Appointed Mediators. Consistent with the new canon, we also adopt proposed new Rule for Certified and Court-Appointed Mediators 10.100(e), Senior Judges Serving as Mediators, which provides that a senior judge may serve as a mediator in a court-ordered mediation only if certified by this Court as a mediator for that type of mediation. We also amend Rule of Civil Procedure 1.720(f)(1); Rule of Juvenile Procedure 8.290(e)(2); and Family Law Rule of Procedure 12.741(b)(6), which currently allow the parties to agree on a non-certified mediator, to clarify that a senior judge may not serve as a mediator unless certified in accordance with rule 10.100(e).
Recommendation 1(B)
A senior judge-mediator who has presided, as a judge, over a case involving any party, attorney, or law firm in the mediation must disclose that fact prior to mediation.
In its report, the Committee points out that Rules for Certified and Court-Appointed Mediators 10.340(b) and (c) currently place the burden of disclosure of any conflict of interest on the mediator and gives the parties the right to reject the mediator after such disclosure. The Committee determined that although serving as a senior judge in a case involving a party, attorney, or law firm is by definition a conflict requiring disclosure pursuant to rule 10.340(b), such service should not necessarily preclude service as a mediator irrespective of waivers by the parties. The Committee recommends that the parties should be allowed to decide whether they have concerns about the disclosed potential conflict of interest. The Committee also recognized that a senior judge who has served on the bench for many years may be unable to recall every situation requiring disclosure. When a prior appearance is known, there must be disclosure; however, we agree with the Committee that a senior judge-mediator should be allowed to satisfy the disclosure requirement by informing the parties of the possibility that an attorney or party may have appeared before the senior judge-mediator during the mediator's service as a judge and place the responsibility on the parties and attorneys to disclose any actual or potential conflicts of which they may be aware.
We approve this disclosure requirement and adopt proposed new subdivision (e) of Rule for Certified and Court-Appointed Mediators 10.340, Conflicts of Interest. The new subdivision, entitled "Senior Judge," requires that a mediator who is a senior judge and has presided over a case involving any party, attorney, or law firm in the mediation disclose such fact prior to mediation. New subdivision (e) also provides that a mediator shall not serve as a mediator in any case in which he or she is currently presiding as a senior judge. Consistent with new subdivision (e), new Canon 5F(2), discussed below, alerts a senior judge of this prohibition.
Recommendation 1(C)
A senior judge must 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 is 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.
The Committee notes that Canon 3E of the Code of Judicial Conduct currently requires disqualification of a judge if any of a number of conflict situations exist. The Committee recommends that a senior judge be expressly required to discl
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