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In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators11/3/2005
ose if the judge is being or has ever been utilized as a mediator by a party, attorney, or law firm. If such service as a mediator occurred within three years, the Committee recommends the senior judge be prohibited from presiding over the case unless all parties consent to the judge's involvement in the case. The Committee determined that the recommended three-year time period was reasonable and sufficient because, in most cases, the appearance of impropriety resulting from the fact that the judge previously received compensation as a mediator from a party would dissipate after a reasonable passage of time.
We approve this recommended safeguard and, in order to implement it, we adopt the relevant language in proposed new Canon 5F(2). The new canon requires disclosure of current or prior mediation service by a senior judge to any party, attorney, or law firm involved in the case pending before the senior judge. The new canon further prohibits a senior judge from adjudicating a case involving parties or attorneys with whom the judge has mediated within the preceding three years, absent consent of the parties. Similar prohibition language has been included in new subdivision (e) of rule 10.340. Language in new Canon 5F(2) relating to a judge disclosing any negotiations or agreements between the judge and any attorney or party appearing before the judge is carried over from the current Application provision of the Code. Also carried over from the Application provision are the provisions allowing a senior judge to be associated with entities solely engaged in offering mediation services, but at the same time expressly prohibiting the advertising or promotion of the senior judge's mediation services.
Recommendation 1(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 Florida 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.
The Committee determined that the potential ethical problems inherent in dual service as a senior judge and mediator are not currently covered in judicial education ethics programs. Therefore, the Committee recommends that a judicial education course for senior judges who intend to serve as mediators be offered annually and a senior judge be required to complete the course prior to beginning service as a mediator. The recommended course would emphasize the practical applicability of the Code of Judicial Conduct and the mediation rules, focusing on how one's status as a judge may interfere with one's actions as a mediator, or vice versa. Other subjects relevant to the dual service also would be included. We agree with the Committee's assessment that this course requirement should not prove overly burdensome on a senior judge-mediator, and we note such a course can also be used to satisfy the four hours of mediator ethics training that all certified mediators are required to complete during each renewal cycle. See In re Rules Governing Certification of Mediators, Fla. Admin. Order No. AOSC00-8 (April 11, 2000). Therefore, we approve this recommendation and direct the Court Education Council to work with the Committee to develop such a course.
To implement this education requirement, we adopt proposed new subdivision (3) of Rule of Judicial Administration 2.150(b), Education Requirements. The new subdivision, entitled "Mediation Training," requires that "prior to conducting any mediation, a senior judge shall have completed a minimum of one judicial education course offered by the Florida Court Ed
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