April 26, 1994

The Ethics Advisory Committee has been asked for its opinion as to whether a state trial judgemay serve as a mediator in the federal court's court-annexed alternative dispute resolution pilot program. The pilot program is established by Rule 212 of the Rules of Practice of the United States District Court for the District of Utah. Under that rule, civil matters may be assigned for mediation pursuant to stipulation or court order. The mediator "serve[s] as a neutral facilitator, assisting the parties in defining and narrowing the issues and encouraging each party to examine the dispute from various perspectives, without undertaking to decide any issue, make findings of fact, or impose any agreement." Rule 212(j)(4).

This Committee recently noted, in Informal Opinions 91-3 and 92-1, that Utah's then existing Code of Judicial Conduct did not prohibit judges from serving as arbitrators or mediators. In Informal Opinion 91-3, the Committee concluded that a trial judge may serve on a fee arbitration panel established by the Utah State Bar, and in Informal Opinion 92-1, the Committee concluded that active senior judges may sit as arbitrators on the American Arbitration Association's Judicial Panel. In both instances, the Committee determined that service as an arbitrator in the situation presented served to improve the legal system and the administration of justice. Here too, the judge's participation in the federal ADR program will serve to improve the legal system and the administration of justice.

On January 1, 1994, the Utah Supreme Court adopted a new Code of Judicial Conduct based on the ABA's 1990 Model Code of Judicial Conduct. Although the new Code's Canon 4F prohibits a judge from "act[ing] as an arbitrator or mediator or otherwise perform[ing] judicial functions in a private capacity unless expressly authorized by law," the Committee does not regard uncompensated participation in court annexed arbitration and mediation programs to constitute action "in a private capacity. "

As noted in Informal Opinion 91-3, the judge should ensure that service does not interfere with the judge's full-time judicial duties and does not cast doubt on the judge's ability to impartially decide matters that may come before the judge's court.