FLORIDA SUPREME COURT
Judicial Ethics Advisory Committee
Opinion Number: 2002-01
Date of Issue: January 18, 2002
May a judge privately mediate the dissolution of his/her friends' marriage?
ANSWER: No. Unless there is an expressed law or court rule authorizing the judge's service as a private mediator, a judge may not ethically mediate the dissolution of his/her friends' marriage.
The judge is a circuit court judge. The judge's friends were involved in extensive divorce litigation over the past six years. Ultimately, their case was dismissed for lack of prosecution. The judge is one of the few people that both parties trust. The judge would like to mediate their case and assist them in coming to an amicable resolution of their differences.
The inquiring judge wants to mediate the dissolution of his/her friends' marriage. Their case is not presently pending before any court. The Code of Judicial Conduct addresses those circumstances in which a judge may serve as a mediator. Canon 5F of the Code states, "A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or court rule." The Commentary to Canon 5F states, "Section 5F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties."
Pursuant to the clear and unambiguous provisions of the Code of Judicial Conduct, the inquiring judge is precluded from serving as a private mediator unless there is a law or court rule that expressly authorizes said service.
One committee member desires to add that the inquiring judge should be cognizant of Canon 5G which precludes a judge from practicing law and appears to likewise preclude the giving of legal advice to anyone other than the judge's family. That committee member also notes that, "It would be difficult to mediate a complex Dissolution of Marriage without giving legal advice to the parties."
Lastly, one member of the committee notes:
If [the inquiring judge] is talking about formal mediation, then I completely agree with the sentiments expressed the [this] opinion. If [the inquiring judge] is talking, however, about informal mediation or counseling in an effort to see if the friends can resolve their disputes now that the case has been dismissed for lack of prosecution, I would not have an ethical problem with such an action so long as [the judge] makes it completely clear to both parties that he cannot provide legal advice to either side and cannot act in an official capacity in their case.
Canons 5F and 5G
The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th St #712, Miami, FL 33125
Participating Members: Judges Davidson, Kahn, Kotey, Levy, Silverman and Townsend
Copies furnished to:
Chief Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Cal Goodlett)
(Name of inquiring judge deleted from this copy)