SENIOR JUDGES AS MEDIATORS

AMENDED FINAL REPORT

Submitted by:

Supreme Court Committee on Alternative Dispute Resolution Rules and Policy

December 1, 2004

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CHAIR’S REMARKS

As Chair of the Supreme Court’s Alternative Dispute Resolution Rules and Policy Committee, it gives me great pleasure to present the Florida Supreme Court with our amended final report on the issue of senior judges serving as mediators.

The committee has closely examined the central issue of whether senior judges should be allowed, and if so, under what conditions, to serve as mediators. We have studied and discussed the history of senior judges serving as mediators. We have reviewed both the legal and practical considerations involved. The committee has attempted to answer the specific issues raised in as clear and concise a manner as possible. In addition, we have tried to provide a general overview of the potential problems inherent in the performance of such dual functions. Finally, we attempted to gather input from the various rules committees which may be affected by our recommendations.

I would particularly like to acknowledge the extensive effort expended on this project by the Subcommittee on Senior Judges as Mediators, chaired by Judge Burton Conner (subcommittee membership noted in Appendix C). Without the attention to detail shown by the subcommittee in its work, this report would not be nearly as comprehensive an analysis of the issues raised.

While the committee feels confident it has answered the questions raised by the Court, it stands ready to give the matter any further consideration the Court deems necessary.

Judge Shawn L. Briese

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CHRONOLOGY

The Committee on Alternative Dispute Resolution Policy, pursuant to a March 10, 2003, letter from Supreme Court Clerk Thomas Hall, was assigned the task of reviewing the practice of senior judges serving as mediators. See Appendix D. That committee was subsequently abolished when the Supreme Court opted to combine the functions performed by the policy committee and its rules counterpart into the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (the committee). The committee inherited the responsibility for this matter. In light of the impending expiration of the six-month period assigned to the task, the committee requested and received a six-month extension until March 10, 2004. The committee subsequently received an additional two week extension until March 24 to allow for the report’s consideration at the committee’s March 18 - 19 meeting.

The committee was directed to:

• evaluate how the current canon is working

• identify any problems or opportunities for improvement, and

• offer recommendations regarding monitoring of the practice.

In addition, the committee was requested to specifically address the following three issues:

1) Whether reporting should be required in order to allow ongoing monitoring of the amount of senior judge time and mediator service performed by an individual.

2) Whether there should be a limit on the number of mediations performed by a senior judge on active status.

3) Whether any additional procedures are required to ensure that senior judges do not use their judicial status to gain mediation business/referrals.

The senior judge matter was considered at the first meeting of the committee on August 14, 2003, at which time the Subcommittee on Senior Judges as Mediators (the subcommittee) was created to consider the matter in detail. The full committee also directed the Dispute Resolution Center to send questionnaires to senior judges who are also certified mediators. The

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subcommittee, chaired by Judge Burton Conner, met via teleconference on September 22, 2003; December 18, 2003; and February 13, 2004. Between these meetings it received direction at the full committee meetings held on October 23 - 24, 2003 and January 8, 2004. The committee finalized the report at its meeting on March 18 - 19, 2004. The final report was submitted to the Court on March 24, 2004.

On May 7, 2004, Justice Wells informed the committee chair that it should file an amended report including specific proposed amendments to any rules or provisions of the Code of Judicial Conduct that may need to be amended. That correspondence further requested the committee to meet with the liaisons of any committees whose body of rules may be affected by the committee proposals. See Appendix D. The committee, with the assistance of Clerk Thomas Hall, attempted to meet with representatives of all of the involved rules committees. Letters were sent by the Dispute Resolution Center to all liaisons or committee chairs (if no liaison had been appointed) on July 7 inviting their participation at the August 13 meeting and to all liaisons on September 24 inviting their participation at the October 15 meeting . In addition, each liaison received an e-mail with information on a conference call to be held on September 23. This call had to be cancelled due to ramifications from the various hurricanes. The committee did meet on August 12 (the August 13 meeting was cancelled due to Hurricane Charley) and October 14 – 15, 2004. The cancellation of the August 13 meeting necessitated the committee request for an extension of the deadline for filing this amended report until December 1. Appendix D contains the letter from the clerk of court granting this extension. Details concerning the contacts with the liaisons is contained in the Committee Liaisons section of this report. The committee, in compliance with Justice Wells’ directions, prepared the attached proposed amendments to Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, Florida Rules of Juvenile Procedure, Florida Rules for Certified and Court-Appointed Mediators, Florida Family Laws Rules of Procedure, and the Code of Judicial Conduct to implement the recommendations of the Senior Judges as Mediators – Final Report filed with the Court on March 24, 2004. See appendix A for legislative (strikethrough/underlined) version of the rule amendments and Appendix B for two column version.

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COMMITTEE LIAISONS Clerk Thomas Hall, on June 15, 2004, sent correspondence to the committees for civil, judicial administration, juvenile, and family rules requesting that each committee appoint a liaison to the Florida Supreme Court Committee on Alternative Dispute Resolution Rules and Policy on the issue of rules dealing with senior judges serving as mediators. In addition, a letter was sent to Judicial Ethics Advisory Committee with a similar request. The following is a summary of the results of the liaison activity: Civil Rules Committee The Civil Rules Committee appointed Judge Seymour Benson (Ret.) who attended meetings of the ADR Committee held on August 12 and October 15. At both meetings, Judge Benson expressed his personal views regarding the proposals since he had not had the opportunity to meet with the entire Civil Rules Committee so as to express its suggestions and thoughts. Most notably, Judge Benson shared his personal opposition to the proposed civil rule amendment which in effect required only senior judges to be certified mediators in order to be selected by agreement of the parties. On October 19, the Civil Rules Committee voted 36 – 3 that “Senior Judges should not be treated any differently than other persons to serve as mediators.” See Appendix H. Judicial Administration On July 13, the Judicial Administration Rules Committee appointed Judge Jesse Preston Silvernail as its liaison. Subsequent to the October 15

meeting, Judge Silvernail contacted Judge Shawn Briese, committee chair, expressing interest in the issue but gave no specific input. Judge Silvernail also requested a copy of the final report, which has been provided to him. Juvenile Rules Committee On June 30, Walter H. Honaman, III was appointed as liaison. On August 10, Mr. Honaman e-mailed the Dispute Resolution Center of his interest in the issue and intention to bring it before the juvenile rules committee. The committee requested an electronic copy of the report, which was sent on October 9. To date, no specific input has been received.

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Family Rules Committee Judge Raymond McNeal was appointed liaison by the committee. Judge McNeal was prepared to attend the August 13 meeting which was cancelled. He was unable to attend the October 15 meeting but sent a detailed letter dated October 11, 2004, expressing his personal views. See Appendix H. While supporting the disclosure and education requirement, he opined that requiring senior judges to be certified was unnecessary and unfair. Judicial Ethics Advisory Committee The committee responsible for the Code of Judicial Conduct appointed Judge Robert Benton as liaison. Judge Benton was prepared to attend the August 13 meeting until it was cancelled. He did attend the October 15 meeting at which he made various comments concerning rule proposals. However, he indicated that he could not speak for the committee because it had not yet met to consider the matter.

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EVALUATION OF CURRENT STATUS

Legal History

In the opinion In re Code of Judicial Conduct, 643 So.2d 1037 (Fla. 1994), this Court adopted a new Code of Judicial Conduct after consideration of the ABA Model Code. In the Application section of the code the Court adopted the following language:

A retired judge who is subject to recall may serve as a mediator, may place his or her name on the mediator master list maintained by the chief judge, and may be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law. However, such judge may in no other way advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her mediation services. A retired judge assigned to adjudicate a case shall disclose any services between the judge and any of the parties or counsel to the case. The purpose of these admonitions is to ensure that the judge’s impartiality is not subject to question.

In the commentary section to the rule, further guidance was provided as follows:

Section B. Although a retired judge subject to recall may act as mediator or arbitrator, attention must be given to relationships with lawyers and law firms which may require disclosure or disqualification. See Canon 5D(1). This provision is intended to prohibit a senior judge from soliciting lawyers to use his or her mediation services when those lawyers are or may be before the judge in proceedings where the senior judge is acting in a judicial capacity. If a senior judge is rendering mediation services for compensation in civil personal injury matters, he or she should not accept a judicial assignment for that type of case in the same court where the senior judge is mediating those cases. On the other hand, the senior judge could be assigned judicial duties in other jurisdictions of that same court, e.g., criminal, family law, or probate matters, or be assigned as a senior judge in other geographic areas in which the judge does not conduct mediation proceedings.

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Having adopted the rule and provided such commentary, the Court, in its opinion, observed that it “will continue to monitor the application of this provision.”

Code of Judicial Conduct

Senior judges are subject to most of the provisions of the Code of Judicial Conduct. The committee would observe that a reading of the Code reveals potential problems with Canon 1 (integrity and independence of judiciary), Canon 2 (appearance of impropriety), Canon 4 (quasi-judicial activities), and Canon 5 (extra-judicial activities – financial activities).

In relation to Canon 1, the committee believes that the requirements that there be an independent and honorable judiciary and that the integrity and independence of the judiciary must be preserved could conceivably be violated by a senior judge who is selected by an attorney and receives compensation for mediation services from an attorney or party (after being selected from other qualified persons) and then subsequently sits in judgment in another case involving the same attorney or party. The inference could arise that the judge’s rulings could favor such attorney or party in order not to jeopardize the judge’s other, more lucrative, profession. Thus, even if Canon 1 is not violated, there remains the possibility that Canon 2, which prohibits the appearance of impropriety, could be breached.

While it is not clear to the committee whether the performance of mediation service is a quasi-judicial or extrajudicial activity (or both), it would point out that both Canon 4 and Canon 5 require that such activities be conducted so as to not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge, (2) demean the judicial office, or (3) interfere with the proper performance of judicial duties. It is certainly possible that performing dual service as a judge and mediator could involve a possible risk of violating one or more of the foregoing canons.

Finally, the committee would note another possible source of concern in relation to extrajudicial activities. Canon 5(D)(1)(a) prohibits a judge from engaging in financial and business dealings that may “reasonably be perceived to exploit the judge’s judicial position” or “involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.” Clearly, there is a possibility that a senior judge, in a mediation capacity, could be involved in the type of frequent transactions or continuing business relationships that could run afoul of the rule.

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Having described the areas of possible violations, the committee must observe that it has found no published authority relating to complaints against senior judges serving as mediators. The committee concludes that there is thus no evidence that the Code of Judicial Conduct is not working properly in relation to the practice of senior judges serving as mediators.

Mediator Standards of Professional Conduct

Although the issue assigned the committee necessarily involves both the Code of Judicial Conduct and the mediator standards of conduct, the committee would emphasize that the latter is its area of expertise. The issue presented in this report is whether there is either any inherent conflict in a senior judge serving as a mediator or any reasonably foreseeable consequences of such dual service that makes it problematic.

The committee believes that, while mediator ethical violations could occur, they are neither unavoidable nor substantial. The main rules which should be of concern are Rule 10.330(a) and (b) and Rule 10.340(a), (b), and (c).

Rule 10.330 (Impartiality) requires a mediator to maintain impartiality, defined as “freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual.” A mediator is required to withdraw from a mediation if no longer impartial.

Rule 10.340 (Conflicts of Interest) prohibits a mediator from mediating a matter that presents a clear or undisclosed conflict of interest. A conflict is described as a relationship compromising or appearing to compromise a mediator’s impartiality. The burden of disclosing such conflict is placed on the mediator and disclosure should be made as soon as practical after the mediator becomes aware of the potential conflict. A mediator may serve after disclosure if all parties agree, unless the conflict “clearly impairs a mediator’s impartiality.”

Other possible problems could arise with rule 10.360 (Confidentiality), which requires a mediator to maintain confidentiality of all information revealed during mediation, except where disclosure is required by law; rule 10.380 (Fees and Expenses), which requires fees for mediation services to be reasonable and consistent with enunciated principles; and rule 10.650 (Concurrent Standards), which mandates that, while mediators may be subject to other professional ethical standards, the mediation rules prevail

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over any conflicting ethical standards during the performance of mediation services.

As part of its practical analysis, the committee collected information concerning the application of Florida’s mediation standards. There are presently 135 senior judges, of whom 391 are Supreme Court certified mediators.2 An additional 32 senior judges have completed a Supreme Court certified mediation training program but are not certified at this time. A number of these judges have let their mediator certification lapse and others have not yet applied.

The committee is aware of anecdotal information regarding mediation conducted by retired and former judges, who are no longer subject to the Code of Judicial Conduct. Since the general public may not be aware of the distinction between senior judges and retired and former judges, the concerns raised regarding judges as mediators may not fairly reflect on senior judges acting as mediators. A review of the actual mediator grievances lend some support for the foregoing premise.

Since the adoption of the mediation standards of conduct in 1992, there have been 77 grievances filed against mediators. Of these, eight (10.4%) have been filed against former judges. Of the eight complaints, three involve former judges who have never been senior judges, two who became senior judges after the complaint, one who was previously a senior judge but was no longer a senior judge at the time the grievance was filed, and two which involved the same senior judge (now deceased). The results of these grievances are attached as Appendix E.

Senior Judge Survey

All senior judges identified as mediators were asked to complete an 11-question survey designed to determine the extent of their service in both capacities, the geographic and subject matter areas in which judicial activities and mediation had occurred, the professional context in which the mediation had been performed, the extent that contact with the same attorneys had occurred as both a senior judge and mediator, their reaction to being required to report on service as judge and mediator, and opinions on 1 For the record, as of November 17, 2004, there were 4892 certified mediators statewide. Thus the number of senior judges constitutes less then one percent of all certified mediators (.8%). 2 These numbers are lower than those submitted with the original report on March 24, 2004. At that time, there were 153 senior judges of whom 43 were certified mediators.

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potential remedial actions. The following is a brief summary of their responses (33 out of 463 responded – 72% rate). The survey was conducted in June - July 2003. The questionnaire and the tabulated responses to all the questions can be found in Appendix F.

The average service as a senior judge during the reporting period appeared to be around 30 days, although about one-fifth served over 60 days. Service appears to be about equally divided between civil and criminal with a significant number in the family division.

In relation to mediations performed, only about one-third of respondents performed more than 25 mediations annually. The area in which respondents mediated the most was circuit civil (almost 90%), with county civil and family performed by about one-third.

In relation to geographical location, among judges who served as both judges and mediators in the two years surveyed, only one senior judge mediated in a circuit in which the judge had not served as a senior judge (although this judge served as both a judge and mediator in four other circuits).

Less than one-third of respondents said they were associated with a “mediation practice/group.”

Less than a quarter (6) of senior judges responding stated that the same attorneys had appeared before them as a judge and mediator, with 2 reporting it had occurred more than ten times in the preceding two years.

When asked if they would object to an ongoing reporting requirement, less than one-fourth indicated they would object. On the issue of whether mediations performed by a senior judge should be numerically limited, less than 20% agreed that they should be. Similarly, only 25% saw the need for any additional procedures to ensure they do not use their judicial status to obtain referrals.

Other States

In addition, the committee reviewed the state survey conducted by the National Center for State Courts in relation to the various ethical provisions

3 This number differs from the 39 senior judges who are certified mediators previously referenced because the number of senior judges and certified mediators fluctuates over time.

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in effect for retired judges serving as mediators and arbitrators. The original survey was conducted in 1999, but was last modified in April 2002. The states are broken down into the following categories (with the number of states noted):

States in which retired judges may continue to conduct arbitrations or mediations while on temporary assignment or while eligible for the bench (31)

States in which a retired judge eligible for recall may conduct arbitrations or mediations except while serving on the bench (11)

States in which retired judges who remain eligible for recall are considered to be performing a judicial function (whether serving or not) and therefore may not conduct arbitrations or mediations (3)

States in which retired judges eligible for recall or serving temporarily may not conduct arbitrations or mediations at all (2)

States where retired judges must continue to comply with the Code of Judicial Conduct and may not conduct arbitrations or mediations (2)

Florida is among the 31 states in the first category. Four states were not included in the survey. The total exceeds 46 because certain states fall into more than one category. The memorandum containing the detailed results of the survey is contained as Appendix G.

The recent solution of one state may be somewhat noteworthy. Specifically, effective January 1, 2003, the Chief Justice of the California Supreme Court, pursuant to authority granted in that state’s Code of Judicial Ethics, adopted amendments to the Standards and Guidelines for Judges Serving on Assignment dealing with the issue of retired judges participating in privately compensated dispute resolution activities while in the Assigned Judges Program. The new rule, contained in Section IV.B, prohibits such participation unless the activities in which the judge is participating are compensated entirely by the court. Judges applying for the Assigned Judges Program are asked to agree in writing to comply with this restriction for the upcoming calendar year. Failure to comply results in removal from the program (reapplication may be made after one year of not engaging in privately compensated dispute resolution).

According to the February 19, 2003, edition of the NEWS of the Judicial Council of California, approximately 75 percent of those applying

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the previous year applied for the Assigned Judges Program in 2003. The reduction was attributed in large part to the new restrictions on private dispute resolution. “Assigned judges” in California received 92 percent of the compensation normally paid for the particular judgeship, an amount significantly higher than that Florida senior judges receive.

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RECOMMENDATIONS

Recommendation 1

There should be no absolute prohibition against a senior judge serving as a mediator provided that the following ethical recommendations are adopted in the appropriate rules:

(A) Senior judges who intend to mediate should be required to be certified by the Supreme Court as a mediator pursuant to Rule 10.100, Florida Rules for Certified and Court-Appointed Mediators.

(B) If a mediator who is a senior judge has presided over a case involving any party, attorney, or law firm in the mediation, the mediator should be obligated to disclose that fact prior to mediation.

(C) A senior judge should be required to disclose if the judge is being utilized or has been utilized as a mediator by any party, attorney, or law firm involved in the case pending before the senior judge. Absent express consent of all parties, a senior judge should be prohibited from presiding over any case involving any party, attorney, or law firm that is utilizing or has utilized the judge as a mediator within the previous three years.

(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 and/or the Florida Rules for Certified and Court-Appointed Mediators could be violated.

Discussion

The committee engaged in vigorous debate over whether service as a senior judge should necessarily preclude the judge from conducting mediations. While the committee learned of only one case in the past decade of a specific ethical violation by a senior judge acting as mediator, it was generally concerned about the potential appearance of impropriety. After extensive discussion, the committee concluded that service as both a judge and a mediator would be appropriate if sufficient safeguards are in place. Such safeguards form the basis of the recommendations found in subparagraphs (A) - (D).

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The safeguards were intended to address various potential concerns, including that 1) the self-determination of the parties could be compromised when a senior judge serves as a mediator, 2) the senior judge assignment might inappropriately create an advantage in obtaining mediation business for a senior judge or any group with whom that senior judge associates, 3) the senior judge could be influenced in his or her judicial duties to favor potential mediation clients, and 4) the attorneys at mediation would be more deferential toward the mediator in anticipation of appearing before the mediator in a judicial capacity.

The committee had to distinguish the role of the elected (selected) judge from a senior judge, since the former is clearly prohibited from acting as a mediator. The critical distinction is that a senior judge is not a full-time judge and should be allowed to pursue other vocations. Given the experience of senior judges, becoming a mediator is a frequent pursuit. Thus, the committee concluded that service as a senior judge and mediator, if carried on in strict observance of applicable judicial and mediator ethical standards, should be allowed.

In relation to (A), the committee noted that presently there is no requirement that a senior judge must be a Supreme Court certified mediator in order to serve as a mediator. Pursuant to rule l.720(f)(l)(B), Florida Rules of Civil Procedure, rule 8.290(e), Florida Rules of Juvenile Procedure, and rule 12.740(c), Florida Family Law Rules of Procedure, the parties may agree on a non-certified mediator. While such a procedure is consistent with party self-determination, the committee believes that an exception should be made in relation to senior judges.

First, any former judge could benefit from a Supreme Court certified mediation training program, particularly after extensive experience on the bench. Anecdotal evidence seems to confirm the view that former judges may need training in the basic concepts of mediation more than, for example, an attorney, since the judicial function is essentially antithetical to the role of the mediator. During the certification training, a senior judge would be alerted to various ethical problems which could arise from service as both a senior judge and a mediator.

Second, certified mediators are subject to the ethical rules and disciplinary system established in the Florida Rules for Certified and Court-Appointed Mediators (Part III, rules 10.700 – 10.880). Under the present rules, a senior judge who mediates a noncourt-ordered case would not be subject to these rules. While the arguments for requiring certification could

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apply to mediators from all professions and not only to senior judges, the additional ethical problems inherent in being both a judge and a mediator make it is advisable to subject a senior judge who serves as a mediator to both mediator and judicial ethical controls. This in no way should be construed as an opinion that significant ethical problems now exist.

With regard to (B), the committee notes that Rule 10.340(b) and (c) places the burden of disclosure of any conflict of interest on the mediator and gives the parties the right to reject the mediator after such disclosure. Rule 10.340(a) states that a conflict arises when “any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.” The committee believes that presiding over a case involving any party or attorney in a subsequent mediation, irrespective of how distant in the past, presents a conflict of interest subject to the disclosure requirement. The essence of the recommended disclosure requirement is to emphasize that serving as a senior judge in a case involving a party, attorney, or law firm is by definition a conflict requiring disclosure pursuant to 10.340(b). However, such service is not necessarily a clear conflict of interest which would preclude service as a mediator irrespective of waivers by the parties.

The committee recognizes that a senior judge who has served for many years on the bench may not be able to recall with specificity every attorney or party who appeared before him or her. However, the committee does not believe this disclosure requirement need be burdensome. In the event that the senior judge/mediator was unable to recall a situation requiring disclosure, the mediator could satisfy this requirement by disclosing the fact of the mediator’s years of service as a judge and the possibility that an attorney or party may have appeared before the judge. The committee is of the opinion that good practice would dictate that the senior judge/mediator invite the parties and attorneys to inform the mediator of any actual or potential conflicts. These provisions would place the decision in the hands of the parties to decide whether they have concerns about potential partiality or conflict of interest.

The committee is aware that Canon 3E of the Code of Judicial Conduct requires disqualification of a judge if any of a number of conflict situations exist. In recommendation (C), the committee suggests the adoption of a standard to be applied in the specific situation where a senior judge has previously served as a mediator. This standard would not alter the present disqualification criteria, it would merely require disclosure under certain circumstances. Specifically, if a senior judge has ever been utilized

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as a mediator by a party, attorney, or law firm, disclosure would be mandatory. If such service as a mediator occurred within three years, the senior judge would be prohibited from presiding over the case (essentially a per se disqualification) unless all parties expressly agree otherwise. While the three year time period may be arbitrary, it was thought that the passage of that minimal amount of time would ordinarily be sufficient to dissipate any appearance of impropriety emanating from the fact that a judge received direct monetary payments from parties subsequently appearing before the judge.

The committee is aware that Section B, Application of the Code of Judicial Conduct, contains a provision that a retired judge assigned to adjudicate a case is required to disclose “any negotiations or agreements for the provision of mediation services between the judge and any of the parties or counsel to the case.” The enunciated purpose of this rule is to ensure that the judge’s impartiality is not subject to question. The committee believes that this provision, while certainly necessary, is not broad enough to address all ethical concerns that may arise from dual service as a senior judge and mediator. Therefore, it is suggested that recommendation (C), which would certainly encompass the existing rule, be adopted in its place.

In relation to (D), the committee notes that the potential ethical problems inherent in dual service as a senior judge and mediator are not specifically covered in judicial education ethics programs at the present time. The potential pitfalls inherent in acting as a judge for the same attorneys by whom that judge hopes to be selected for a potentially lucrative mediation assignment are not dilemmas a full-time judge must confront. Therefore, the committee suggests to the Court that strong consideration be given to the development of a special course, to be offered annually, based on need, for senior judges who wish to mediate. Such course would only have to be completed once by a senior judge, preferably prior to service as a mediator. This course, with its emphasis on ethics, should be well received by persons needing to satisfy the ethics requirements for continuing judicial education and continuing mediator education.

Course content should emphasize the practical applicability of the Code of Judicial Conduct and the mediation rules, particularly where one’s status as a judge may interfere with one’s actions as a mediator, or vice versa. Subjects could include the potential detrimental impact on self-determination of the parties created by senior judges’ positions as jurists, as well as the perception that their method of mediation would be something other than neutral facilitation. Other issues covered may include the

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difference between mediation and the adjudicatory process, and the use of the titles “judge” or “your honor” during the mediation process. In relation to the latter, the use of such titles could possibly serve to mislead the parties as to the role of the mediator and undermine the self-determination of the parties. The length of such course should be left to those with expertise in judicial and mediation education. The committee volunteers its assistance in relation to content, presentation, and faculty in relation to this course, as well as any other assistance the Council would request.

Rule Amendments

The requirement in (A) that senior judges become certified mediators results in the need for numerous proposed amendments, specifically rule 1.720(f)(2), Florida Rules of Civil Procedure, rule 8.290(e)(2)(B), Florida Rules of Juvenile Procedure, rule 10.100(e), Florida Rules for Certified and Court-Appointed Mediators, rule 12.741(b)(6)(A)(ii), Florida Family Law Rules of Procedure, and Canon 5F, Code of Judicial Conduct. The committee, after much discussion, decided to place references to this restriction in the civil, juvenile, and family rules. There was some support for the position that it need only be referenced in the Code of Judicial Conduct, but the committee chose the other course to provide better notice to the attorneys and parties utilizing mediators in those areas.

In addition, the Committee suggests that a distinction be made between senior judge and retired judge in rule 2.030(a)(3)(D), Florida Rules of Judicial Administration, and in subdivision B. of the Application Section of the Code of Judicial Conduct. This is necessitated by changes made recently by the Court in relation to certification requirements for senior judges and the creation herein of responsibilities relating to senior judges who also serve as mediators.

The disclosure mandated in (B) in relation to mediators who have presided over a case as a senior judge involving parties or attorneys to a subsequent mediation is reflected in the proposed amendment to rule 10.340(e), Florida Rules for Certified and Court-Appointed Mediators.

The required disclosure by a senior judge in relation to previous mediation involvement with parties or attorneys appearing before the judge which is referenced in (C) is part of the amendment to Canon 5F(2), Code of Judicial Conduct, as is the prohibition against presiding over a case involving a party or attorney with whom the senior judge has acted as a mediator within the preceding three years. The latter prohibition is also

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contained in the proposed amendment to rule 10.340(e), Florida Rules for Certified and Court-Appointed Mediators.

The judicial education course requirement for senior judges wishing to serve as certified mediators contained in (D) has been placed in rule 2.150(b)(3), Florida Rules of Judicial Administration, since it would be conducted as a judicial education event rather than a mediation training event.

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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.

Discussion

The committee sees no reason to place a numerical limit on the cases a senior judge may mediate. Aside from the difficulty of deciding whether to measure mediation in terms of numbers of cases or time spent mediating, the committee could ascertain no purpose in a numerical restriction, given that there is no necessary relationship between volume and existence of conflict situations. The committee believes that the more prudent way to address the concerns is by requiring disclosure and potential recusal on a case by case basis, as recommended above. In this way, a senior judge would not be arbitrarily precluded from engaging in mediations which present no ethical problems.

For the same reasons, the committee believes that a blanket geographic or subject matter restriction would no longer be necessary if the Court adopts the recommendations in this report. In addition, adoption of this recommendation is consistent with the present status of the senior judge list, which is statewide rather than by circuit.

The committee notes that adoption of this recommendation would conflict with the Commentary in Section B of the Application of the Code of Judicial Conduct which suggests subject matter and geographic restrictions of the type referenced in this recommendation. While the committee is aware that such commentary does not have the effect of a code provision, it would respectfully advise the Court to delete such reference if the court accepts this recommendation.

Rule Amendments

While this recommendation did not require any new language, the committee does think it advisable to delete the Commentary to section B of the Application Section of the Code of Judicial Conduct since it references both subject matter and geographic restrictions.

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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.

Discussion

In response to the Court’s question whether reporting should be required in order to allow ongoing monitoring of the amount of senior judge time and mediator service performed by an individual, the committee believes that only the limited reporting referenced in the recommendation should be required at this time. While monitoring the mediation activities of senior judges will provide data for further analysis, the committee was concerned that any reporting not be overly burdensome to either the senior judge or the collecting body. Thus, the committee recommends that the information collected be as cursory as possible and be incorporated into an otherwise existing report. See, for example, the report referenced in In Re Report and Recommendations of the Committee on the Appointment and Assignment of Senior Judges, 847 So.2d 415 (Fla. 2003).

Rule Amendments

The committee does not believe that any rule amendments are necessitated if this proposal is adopted.