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In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators11/3/2005
ucation Council," which will "focus on the areas where the Code of Judicial Conduct or the Florida Rules for Certified and Court-Appointed Mediators could be violated."
Recommendation 2
There should be no limit on the number of mediations performed by a senior judge on active status, and no subject matter or geographic restrictions on mediations conducted by senior judges.
The Committee reported that it could ascertain no purpose in placing a numerical limit on the cases a senior judge may mediate, given that there is no identifiable relationship between the number of mediations and the existence of conflicts or other ethical concerns. The Committee determined that the better way to address concerns about potential conflicts is to expressly require disclosure and recusal on a case-by-case basis, as proposed in Recommendation 1. We agree that a limit on the number of cases a senior judge can mediate could arbitrarily and unnecessarily preclude a senior judge from engaging in mediations that present no ethical problems, and, therefore, we approve the recommendation of the Committee. However, we do not agree with the Committee's recommendation to eliminate geographic or subject-matter restrictions. The Committee points out that removing the geographic and subject-matter restrictions currently contained in the commentary to Section B of the Application provision of the Code would be consistent with the standard senior judge assignment orders that allow for statewide service rather than service by circuit or district. See In re Report & Recommendations of the Committee on Appointment & Assignment of Senior Judges, 847 So. 2d 415, 423 (Fla. 2003) (approving the creation of standard assignment orders that allow for statewide service as a senior judge). However, we believe potential conflicts of interest and the appearance of impropriety are more likely to arise when a senior judge presides over the same type of cases in court and in mediation in the same geographic area. This potential is sufficient to warrant continuation of some geographic and subject-matter restrictions. Accordingly, we delete the commentary to Section B of the Application provision of the Code as recommended by the Committee; and we add language similar to the geographic and subject matter restrictions found in that commentary to new Canon 5F(2) and new rule 10.340(e).
Recommendation 3
The Clerk of the Supreme Court or appropriate entity should collect information from senior judges, in connection with senior judge certification renewal, regarding whether the senior judge has served as a mediator and, if so, in how many cases the judge served as mediator.
We endorse this recommendation which, to some extent, already has been implemented in practice. Consistent with the Committee's recommendation, a senior judge seeking reassignment to service must indicate in the reassignment to service questionnaire submitted to the Court and forwarded to the appropriate district review board whether the judge has worked as a mediator in the past year and list all cases mediated. The Committee also recommends that the district review boards include the mediation information in the reports submitted to the Chief Justice in accordance with In re Report & Recommendations, 847 So. 2d at 419. We note that some of the district review boards already include in their reports general information on this subject, and we now direct all review boards to begin including in their reports the information recommended by the Committee.
CONCLUSION
In approving the majority of the Committee's recommendations, we express our deep gratitude to the Committee on Alternative D
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