The Florida Supreme Court, on its own motion, is considering amending the Code of Judicial Conduct, the Florida Rules for Certified and Court-Appointed Mediators, and various rules of procedure to no longer allow senior judges to serve as mediators. Since first authorizing senior judges to serve as mediators, in In re Code of Judicial Conduct, 643 So. 1037 (Fla. 1994), and reaffirming the practice in In re Report of the Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators, 915 So. 2d 145 (Fla. 2005), the Court has been mindful of concerns about the propriety of such dual service and has continued to monitor the practice. The Court is considering this change because of continued concerns about the ethical implications of the dual service. The Court is especially concerned about the potential that a senior judge who serves as a paid mediator could be seen as exploiting the judge’s judicial position or lending the prestige of judicial office to advance the private interests of the judge or a mediation firm with which the judge may associate, or otherwise running afoul of the Code of Judicial Conduct. The Court invites all interested persons to comment on the amendments under consideration, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. The Court specifically seeks comments from the conferences of judges, the senior judges, the Supreme Court’s Alternative Dispute Resolution Rules and Policy Committee, the Judicial Ethics Advisory Committee, and the various Florida Bar rules committees whose bodies of rules are affected by the proposed change. All comments must be filed with the Court on or before November 15, 2013. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.
IN RE: AMENDMENTS TO THE CODE OF JUDICIAL CONDUCT; THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS; THE FLORIDA RULES OF CIVIL PROCEDURE; THE FLORIDA RULES OF JUDICIAL ADMINISTRATION; THE FLORIDA RULES OF JUVENILE PROCEDURE; AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE —SENIOR JUDGES AS MEDIATORS, Case No. SC13-1732
CODE OF JUDICIAL CONDUCT
Canon 5. A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict with Judicial Duties
A. – E. [No Change].
F. Service as Arbitrator or Mediator.
(1) A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law or Court rule. A judge may, however, take the necessary educational and training courses required to be a qualified and certified arbitrator or mediator, and may fulfill the requirements of observing and conducting actual arbitration or mediation proceedings as part of the certification process, provided such program does not, in any way, interfere with the performance of the judge's judicial duties.
G. [No Change]
Canon 5A – Canon 5E(3). [No Change]
Canon 5F(1). Canon 5F(1) does not prohibit a judge or senior judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties. An active judge may take the necessary educational and training programs to be certified or qualified as a mediator or arbitrator, but this shall not be a part of the judge's judicial duties. While such a course will allow a judge to have a better understanding of the arbitration and mediation process, the certification and qualification of a judge as a mediator or arbitrator is primarily for the judge's personal benefit. While actually participating in the mediation and arbitration training activities, care must be taken in the selection of both cases and locations so as to guarantee that there is no interference or conflict between the training and the judge's judicial responsibilities. Indeed, the training should be conducted in such a manner as to avoid the involvement of persons likely to appear before the judge in legal proceedings.
Canon 5F(2). Canon 5F(2) no longer allows a senior judge to serve as a mediator. The purpose of the
Canon 5G. [No Change]
Application of the Code of Judicial Conduct
This Code applies to justices of the Supreme Court and judges of the District Courts of Appeal, Circuit Courts, and County Courts.
Anyone, whether or not a lawyer, who performs judicial functions, including but not limited to a civil traffic infraction hearing officer , court commissioner, general or special magistrate , domestic relations commissioner, child support hearing officer, or judge of compensation claims, shall, while performing judicial functions, conform with Canons 1, 2A, and 3, and such other provisions of this Code that might reasonably be applicable depending on the nature of the judicial function performed.
Any judge responsible for a person who performs a judicial function should require compliance with the applicable provisions of this Code.
If the hiring or appointing authority for persons who perform a judicial function is not a judge then that authority should adopt the applicable provisions of this Code.
A. [No Change}
B. Retired/Senior Judge
(1) A retired judge eligible to serve on assignment to temporary judicial duty, hereinafter referred to as “senior judge,” shall comply with all the provisions of this Code except Sections 5C(2), 5E,
(2) If a retired justice or judge does not desire to be assigned to judicial service, such justice or judge who is a member of The Florida Bar may engage in the practice of law and still be entitled to receive retirement compensation. The justice or judge shall then be entitled to all the rights of an attorney-at-law and no longer be subject to this Code. A retired justice or judge who serves as a mediator is subject to the Florida Rules for Certified and Court-Appointed Mediators.
RULE 10.100. CERTIFICATION REQUIREMENTS
(a) – (f) [No Change]
RULE 10.340. CONFLICTS OF INTEREST
(a) – (d) [No Change]
(e) Senior and Retired Judges. A senior judge may not serve as a mediator. If a mediator who is a
RULE 1.720. MEDIATION PROCEDURES
(a) – (i) [No Change]
(j) Appointment of the Mediator.
(1) Within 10 days of the order of referral, the parties may agree upon a stipulation with the court designating:
- (A) a certified mediator; or
(B) a mediator
(2) – (3) [No Change]
(k) [No Change]
RULE 2.320. CONTINUING JUDICIAL EDUCATION
(a) [No Change]
(b) Education Requirements.
(1) – (2) [No Change]
(c) – (e) [No Change]
RULE 8.290. DEPENDENCY MEDIATION
(a) – (d) [No Change]
(e) Appointment of the Mediator.
(1) [No Change]
(2) Party Stipulation. Within 10 days of the filing of the order of referral to mediation, the parties may agree upon a stipulation with the court designating:
(A) another certified dependency mediator to replace the one selected by the judge; or
(B) a mediator
(f) – (q) [No Change]
RULE 12.741. MEDIATION RULES
(a) [No Change]
(b) General Procedures.
(1) – (5)
(6) Appointment of the Mediator.
(A) Within 10 days of the order of referral, the parties may agree upon a stipulation with the court designating:
- (i) a certified mediator; or
(ii) a mediator
(B) – (C) [No Change]