FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2014-02
Date of Issue: January 6, 2014

ISSUES

May a judge preside in a case in which that judge, while previously in law practice, has provided mediation services?

ANSWER: No.

May a judge preside in a case, in which a party is represented by a lawyer to whom the judge has provided mediation services, while the judge was previously in law practice?

ANSWER: Yes, unless the judge's impartiality might reasonably be questioned.

FACTS

The inquiring judge, prior to assuming the bench, provided mediation services in matters of the same type as those over which the judge is now presiding.  As a result, cases in which the judge, while in law practice, served as mediator, are now being assigned to the judge.  Also, cases are being assigned to the judge in which the judge did not serve as a mediator, but in which attorneys to whom the judge provided mediation services represent a party.

DISCUSSION

Canon 3E(1)(a) of the Florida Code of Judicial Conduct provides that: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.

The mediation process provides the mediator with unparalleled access to the facts and legal arguments in a matter.  The parties in a mediation are encouraged to disclose to the mediator all pertinent facts and legal issues, both favorable and unfavorable, so that the mediator can assist the parties in reaching a resolution.  Some facts shared by a party to a mediator may be shared with the opposing party, others may not.  All information gained in the course of a mediation is generally confidential and is not to be disclosed outside the confines of the mediation. Indeed, information received by a mediator during a caucus with one party to a dispute may not be disclosed to the opposing party without the consent of the party who disclosed the information.  Rule 10.360(a) and (b), Florida Rules for Certified and Court-Appointed Mediators. 

Therefore, as a result of the mediation, the mediator not only has information which may not thereafter be disclosed to anyone other than parties to the mediation, the mediator may have information disclosed by one party of which the opposing party is unaware.

Lastly, sufficient time may have passed between the mediation and the assignment of the case to the inquiring judge resulting in the fading of the memories of the judge, the parties, and their counsel, perhaps at different rates. Therefore, the individual recollection of facts discussed at the mediation, including that of the judge, may differ and may impact  the decision-making process.

Against this background, the Committee believes that the provision of mediation services provides a mediator, who is now a judge, with knowledge of evidentiary facts such as to require disqualification of the judge in the matter previously mediated, as required by Canon 3E(1)(a).

The Committee does not believe that the result can be avoided by consent of the parties to the litigation because, among other reasons, the nature of the mediation process prevents such  consent from being meaningfully informed.  The parties and counsel to the mediation were not, even at the end of the mediation, in possession of all of the facts and arguments which were disclosed at the mediation.  Even if they had been at the close of the mediation, the passage of time dulls the memory of what was disclosed at the mediation, and to whom.

It is possible, of course, that litigation may be decided by the judge without reference to the facts and other matters disclosed at the mediation.  However, at the time the case is assigned to the judge, neither the parties nor the judge know what issues will be brought before the judge for resolution.  Therefore, the disqualification should be immediate, and not await the potential parsing of particular facts and arguments made in a mediation and a decision on whether those facts and arguments are material to the particular issue then pending before the judge.

With regard to the second question, the Inquiring Judge notes Canon 5(F)(2), which prohibits senior judges from presiding over a case in which a party is represented by a lawyer who has utilized the mediation services of the senior judge during the past three years.

This Canon might suggest that a judge should not, for a period of three years, preside over a case in which a party is represented by an attorney who utilized the mediation services of the judge, during the judge's prior career as a lawyer.

This Canon, however, applies to senior judges, but not judges.  Senior judges are permitted, subject to certain restrictions, to perform mediation services during the time of their service as a senior judge.  Judges are not permitted to do this.

Therefore, the three-year rule applicable to senior judges does not apply to judges.  A judge is not required to be disqualified solely because the judge has provided mediation services to an attorney representing a client in a case during the three years preceding the assignment of the case to the judge.
The judge's disqualification is governed by Canon 3E(1) and is required if the judges impartiality might reasonably be questioned.

The Commentary provides that "A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification."

Therefore, for a reasonable period of time after taking the bench, the judge should disclose on the record such information, potentially including the judge's prior provision of mediation services to an attorney in the case, that the judge believes that the parties or their lawyers might consider relevant to the question of disqualification.

REFERENCES

Fla. Code Jud. Conduct Canons 3E(1)(a) , 5F(2).
Florida Rules for Certified and Court-Appointed Mediators, Rule 10.360.

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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. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Roberto Arias, Chair, Judicial Ethics Advisory Committee, Duval County Courthouse, 501 West Adams Street, Room 7180, Jacksonville, Florida 32202-4603.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa, Patricia E. Lowry, Esquire, Judge Michael Raiden, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro. 


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator