A judge has asked the Ethics Advisory Committee whether a judge may refer parties to a specific mediator.
A judge may not refer parties to a specific mediator.
It is not unusual for parties in litigation to pursue mediation in the middle of litigation, either because mediation is required by statute or rule, or because mediation is desired. The question posed by the judge in this situation has two parts: 1) If parties to a case ask the judge for suggestions on a mediator, may the judge offer a recommendation? 2) May the judge offer a recommendation without being asked?
These questions implicate three rules in the Code of Judicial Conduct. Canon 1, Rule 1.3 states that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of . . . others or allow others to do so.” Canon 2, Rule 2.2 states that a judge “shall perform all duties of judicial office . . . impartially.” Rule 2.4 states that a judge “shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.” The concern in this situation is that a judge would be using his or her office to advance the pecuniary and reputational interests of a mediator, and that the judge’s underlying motives might be based on a relationship with the mediator.
The Committee has located one opinion discussing this issue. The Florida Judicial Ethics Advisory Committee, in Opinion 08-1, stated that if a judge in an adversarial probate case is asked by both sides to recommend a mediator, the judge may provide the parties with a list of at least three persons, without showing a preference for any of the three. The Committee also stated that the judge should not repeatedly include the names of the same mediators. Thus, according to the Florida Committee a judge may not recommend specific mediators, although a judge may have a rotating list.
The Committee agrees with the Florida Committee that a judge may not refer individuals to a specific mediator. As noted by the Florida Committee, “judges are not to use their public office to promote the private interests of others.” Referring to a specific mediator would be using the prestige of the judicial office to advance the personal and economic interests of the mediator.
The Committee is also concerned that a judge may be sending a message that the judge will approve any agreement that comes from the particular mediator. Although agreements are approved in most situations, the judge should not give the parties any impression that the mediator is in a position that might unduly influence the judge.
At this point the Committee will not offer an opinion on whether a judge may provide a list of mediators as was approved by the Florida Committee. The Committee has not been asked that particular question. However, the Committee again emphasizes that a judge may not create any appearance that someone is in a position to influence the judge’s conduct.
The Committee notes that the Administrative Office of the Courts maintains a roster of mediators for public reference. Because a judge cannot recommend specific mediators, the Committee believes that it would be a good practice for judges to simply refer parties to the roster. By referring to the roster, a judge will avoid any scrutiny that would be associated with providing the judge’s own list.