May 28, 1996

Opinion 96-7

Judge observing mediations and
performing co-mediations to be
certified as a mediator
Canon 5F

Re: Committee on Standards of Conduct Governing Judges
Your inquiry dated March 21, 1996

You plan to retire on December 31, 1996. After you retire you want to work as a mediator and senior judge. You have taken the mediation course. You need to do two required mediation observations and two required co-mediations before you are certified as a mediator. You ask whether you may complete these requirements before your retirement while still serving as a Circuit Judge. You ask whether you may complete the requirements in (1) local cases to which you are not assigned or (2) in cases in an adjoining circuit.

Canon 5F states that '[a] judge shall not act as an arbitrator or mediator or otherwise perform judicial function in a private capacity unless expressly authorized by law or Court rule." The commentary to the Canon provides that his section "does not prohibit a judge from participating I arbitration, mediation or settlement conferences performed as part of judicial duties."

As to whether you may observe mediations, a majority of six of the ten responding committee members think you must wait to complete this "observation" requirement until after your retirement as your proposed activity will not be performed as part of your judicial duties. Rather, it will be performed in a private capacity so that you may be certified as a private mediator. However, four of the ten responding members think that you can complete the "observation" requirement before your retirement. Three of the four state the Code contains no prohibition against simply observing a mediation. Additionally, one of these three members, along with the fourth, opine that you may complete the mediation requirements if the activities are conducted as part of your judicial duties as allowed by the commentary to Canon 5F.

As to whether you may co-mediate cases, eight of the ten responding members believe that you must wait until after your retirement. Once more, it appears that this activity will be performed in a private capacity as you are doing it in order to be certified as a private mediator. Two of the ten responding members find that you can complete this requirement as long as the co-mediations are done as part of your judicial duties as allowed by the commentary to Canon 5F.

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).

Oliver L. Green, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

Enclosure
cc: All Committee Members
Office of the State Courts Administrator
(name of judge deleted from this copy)

Participating Members: Judges Dell, Doughtie, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Tolton and Attorney Novicki