There was a time when mediators were seen as alternatives to judges. Mediators had skills of client-led interest-based consensual resolution; judges had skills in law-led, positional adjudication. Now, however, many judges seek mediator training and practice mediation, both on and off the bench. At an intriguing panel at the ABA Dispute Resolution Section Spring Meeting, James Alfini, Nancy Welsh and Sharon Press investigated some implications of this phenomenon.
First, may a judge preside over a case that she has mediated? Judges are presumably well-versed in likely outcomes of disputes and increasingly can conduct nuanced mediation processes. But are they then disqualified from adjudicating that same dispute once they have acted as a mediator? Prof. Alfini noted the gradations between settlement conferences and full-blown confidential mediation processes. The risk is not only that the judge may learn confidential or inadmissible information — it is also that the parties may feel coerced by behaviors and statements from judges that they would not feel from private mediators. He cited a Kentucky case, Home Depot v. Saul Subsidiary, in which the court held that there was no basis to recuse a trial judge who had conducted a mediation in a case over which the judge later presided.
Prof. Alfini pointed out that during mediation a judge can learn inadmissible or confidential facts, and develop attitudes toward parties and counsel. Is this inconsistent with a judge’s duty of impartiality? Is it distinguishable from facts a judge learns in considering a motion to quash, or attitudes a judge develops during motions and trial? Prof. Alfini suggested the addition to the Code of Judicial Conduct a provision disqualifying a judge who has acted as a mediator from thereafter acting as a judge.
Prof. Welsh focused on the lawyer rather than the judge – what are the ethical duties of an attorney representing a client in a mediation in which a judge is the neutral? The duty of candor to a mediator is different from the duty of candor to a court. See Comment 5 of Rule 2.4, stating that, except if appearing before an arbitrator, a lawyer’s statements are governed by 4.1 (statements made to third parties). Rule 3.3 requires a higher standard before a “tribunal.” Is this a different standard depending on whether the mediator is a sitting judge? A presiding judge? And ALJ? A retired judge? Note Comment 1 to Rule 3.3, covering an “ancillary proceeding.” Is mediation one of these? See also Rule 1.0(m) – a “tribunal” is something that renders a binding legal judgment.
Prof. Welsh posits the problem that arises if the judge/mediator were to ask what undisclosed documents would show. Must an attorney respond truthfully? What experienced mediator would take counsel’s assertions as true, and reliable? Is the duty owed to the judge’s office or to the judge? Or to the mediation process? Or to the court’s process? She suggests that the objective of the Model Rules is to protect the integrity of the court, and that the duty of candor applies to any court-connected proceeding, including mediation. This obligation would also apply to court-appointed mediators, in order to protect the integrity of the court and, by extension, the justice system.
Prof. Press previously served as Director of the Florida state court’s dispute resolution program. The Florida Code of Judicial Conduct has been revised to address the practice of Senior judges and retired judges as private mediations, and in court-ordered mediations. Requirements of increased mediator disclosure were imposed, including whether a judge has previously presided in a case involving not only counsel, but also their firms. Last year, further amendments were proposed to go farther in prohibiting senior judges from acting as mediators. Though the proposal was not accepted, it nevertheless prohibited service as mediator in any district where the senior judge was a presiding judge, and the organizations offering their services. Restrictions were also placed on advertising that suggest that service as a judge makes a person a better mediator. Judges may not lend the prestige of the court to their private practice as mediators. For example, use of the word “judge” may fall afoul of the rule unless it is clearly used not to suggest that the title lends expertise to the individual’s mediator skills.
Prof. Press notes, however, that these rules do not reach former (retired, rather than Senior) judges at all, and questions whether the market for former judges as mediators – or the notion that judges make better mediators than non-judges – will be affected.
One open question: When a sitting judge “proposes” mediation, what kind of disclosures would be necessary to obtain informed consent, in light of the nuances that regulations impose?