# Supreme Court of Florida

____________

No. SC13

- 1732

____________

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 ADM INISTRATION; THE FLORIDA RULES OF JUVENILE PROCEDURE; AND THE FLORIDA FAMILY

LAW RULES OF PROCEDURE

— SENIOR JUDGES AS MEDIATORS

.

[June 19, 2014]

PER CURIAM.

The Court, on its own motion, amends the Code o f 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 o f

Juvenile Procedure; and the Florida Family Law Rules o f Procedure to add

additional safeguards to the provisions of the Code and rules governing senior

judges serving as mediators

. 1 The additional safeguards are intended to further

ensure that service as a senior judge and a mediator does not result in an

appearance of or the potential for impropriety.

1 . We have jurisdiction. See art. V, § 2(a), Fla. Const.- 2

- BACKGROUND

The Court first authorized senior judges to serve as mediators in 1994

, when

it adopted a new Code of Judicial Conduct, which in Section B of the a pplication

section of the Code authorized the dual service

. See In re Code of Judicial

Conduct , 643 So. 2d 1037, 1039 , 1062 (Fla. 1994). Due to the Court’s concerns

about the propriety of a senior judge acting as both a mediator and an assigned

senior judge, the Court modified proposed Section B and its commentary “to more

fully explain when and under what circums tances a senior judge may be a

mediator.” I d. at 1039. At that time, t he Court explained that it would continue to

monitor the a pplication of the new provision in light of the ethical concerns about

senior judges serving as mediators

. Id.

In 2005, the Court amend ed the Code of Judicial Conduct and the various

rules of procedure governing senior judges serving as mediators

, in response to

recommendations of the Supreme Court Committee on Alternative Dispute

Resolution Rules and Policy (ADRR & P Committee )

. See In re Report of the

Alternative Dispute Resolution Rules and Policy Committee on Senior Judges as

Mediators , 915 So. 2d 145 (Fla. 2005). M uch of Section B of the application

section of th e Code

, including the provision s allowing a senior judge to be

associated with a mediation firm but prohibiting a senior judge from advertising or- 3

-

promoting the judge’s medi ation services in any other way, was moved to new

Canon 5F(2). New Canon 5F(2)

, the various rule amendments

, and the

educational requirement s for senior judge mediators

, adopted by the Court

,

included a number of additional recommended safeguards designed to avoid any

appearance of or potential for impropriety resulting from a senior judge serving as

a mediator. I d . at 148

- 150.

Since adopti ng the safeguard s recommended by the ADRR & P Committee

in 2005 , the Court has been mindful of the concerns about the propriety of senior

judges serving as mediators and has conti nued to monitor the practice. Recently

,

b ecause of the Court’s ongoing conce rn about the potential that a senior judge who

serves as a paid mediator could be seen 2 as exploiting the judge’s judicial position 3

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, 4 or otherwise

running afoul of the Code of Judicial Conduct

, the Court began considering

whether senior judges should no longer be allowed to serve as mediators

. T he

2

. See Fla. Code of Jud. Conduct, Canon 2 ( requiring a judge to avoid impropriety and the appearan ce of impropriety in all of the judge’s activities )

.

3

. See Fla. Code of Jud. Conduct, Canon 5D ( providing a judge shall not engage in financial and business dealings that may reasonably be perceived to exploit the judges’ judicial position)

.

4

. See Fl a. Code of Jud. Conduct, Canon 2B ( providing a judge shall not lend the prestige of judicial office to advance the private interests of the judge or

other s )

.- 4

-

Court published for comment amendments to the Code and rule s that w ould have

prohibited the dual service.

A number of comments were filed with the Court

, the clear majority of

which oppose the prohibition

. 5 The Judicial Ethics Advisory Committee, the

Alternative Dispute Resolution S ection of The Florida Bar, and t he Fl orida Bar’s

Family Law Rules Committee urge that the proposed amendments are unnecessary.

The circuit court chief judges, the three conferences of judges, as well as the senior

judges, circuit judges, and attorneys who filed comments oppose prohibiting sen ior

judges from serving as mediators. The Trial Court Budget Commission points out

the potential adverse impact prohibiting senior judges from s erving as mediators

may have on trial c ourt budgeting and the Court’s foreclosure backlog reduction

i nitiative. See In re Final Report and Recommendations of the Foreclosure

Initiative Workgroup , Fla. Admin. Order No. AOSC 1 3

- 2 8 ( June 21, 2013 ) (on file

with Clerk, Fla. Sup. Ct.).

AMENDMENTS

After considering the comments filed and the fact that none of those wh o

commented are aware of any instances of abuse resulting from the dual service

, we

have determined that senior judges should continue to be allowed to serve as

5

. The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy and the Florid a Bar’s Civil Procedure Rules Committee filed comments taking no position on the proposals.- 5

-

mediators . However

, we have also determined that two additional safeguards

should be added to th e Code and rules governing the practice to further alleviate

any concern that serving as a senior judge could be seen as inappropriately creat ing

an advantage in obtaining mediation business for the senior judge or any mediation

group with which the senior judge associates. See In r e Report of the Alternative

Dispute Resolution Rules and Policy Committee on Senior Judges as Mediators

,

915 So. 2d at 148 ( recognizing this ethical concern)

.

The first new safeguard

, which we add to the Code and the various r ules

,

prohibits a senior judge from ser ving as a mediator in any case in a circuit in which

the senior judge is presiding as a judge. The second safeguard, which we add to

Canon 5F(2) , requires a senior judge to ensure that entities that provide mediation

services with which the senior judge associates as a mediator abide by the same

prohibitions on advertising or promoting the senior judge’s mediation service as

ar e imposed on the senior judge. Contra Jud. Ethics Advis. Comm. Op. 2011

- 11

(advising that b y authorizing a senior judge to be affiliated with an entit y that

provide s mediation services, current Canon 5F(2) implicitly allows a senior judge

to permit such entity to display the judge’s name, image

, and b iographical

information in the entity’s adver tising and on its website).

Accordingly, we amend the Code of Judicial Conduct; the Florida Rules for

Certified and Court

- Appointed Mediators; the Florida Rules of Civil Procedure;- 6

-

the Florida Rules of Judicial Administration; the Florida Rules of Juveni le

Procedure; and the Florida Family Law Rules of Procedure as reflected in the

appendix to this opinion. New language is indicated by underscoring and deletions

are indicated by struck

- through type. The amendments shall become effective

October 1, 2014, at 12:01 a.m.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE

EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding

– The Code of Judici al 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- 7

- APPENDIX

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 o r 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 medi ator, 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.

(2) A senior judge may serve as a mediator in a case in a circuit in which the senior judge is not presiding as a judge only if the senior judge is certified pursuant to rule 10.100, Florida Rules for Certified and Court

- Appointed

Mediators. Such sen ior judge 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 senior judge

may in no other way not advertise, solicit business, associate with a law firm, or participate in any other activity that directly or indirectly promotes his or her

mediation services and shall not permit an entity with which the senior judge

associates to do so . A senior judge shall not s erve as a mediator in any case in a circuit in which the judge is currently presiding as a senior judge

. A senior judge who provides mediation services shall not preside over the same type of case the judge mediates any case in the circuit where the mediati on services are provided;

however , a senior judge may preside over other types of cases (e.g., criminal, juvenile, family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not provide mediation services. A sen ior judge shall 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.- 8

-

Absent express consent of all parties, a senior judge is prohibited from pr esiding 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 . A senior judge shall disclose any negotiations or agreements for the provision of mediation

services between the senior judge and any of the parties or counsel to the case.

G. [No Change]

Commentary

Canon 5A

– Canon 5E(3). [No Change]

Canon 5F(1). Canon 5F(1) does not prohibit a judge from participating in arbitration, mediation or settlem ent 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 trai ning 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). The purpose of the se admonitions in this canon is to ensure that

the impartiality of a senior judge 's impartiality is not subject to question . Although a senior judge may act as a mediator or arbitrator in a circuit in which the judge is

not presid ing as a senior judge , attention must be given to relationships with lawyers and law firms which may require disclosure or disqualification . These provisions are intended to prohibit a senior judge from soliciting lawyers to use his

or her the senior judge’s mediation services when those lawyers are or may be before the judge in proceedings where the senior judge is acting in a judicial capacity and to require a senior judge to ensure that entities with which the senior judge associates as a mediator abide by the same prohibitions on advertising or promoting the senior judge’s mediation service as are imposed on th e senior judge

.

Canon 5G. [No Change]- 9

-

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, wh o 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, sh all, 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 perfo rms 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

t his 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 , 5F(1), and 6A. A senior judge shall not practice law or serve as a mediator in a circuit in which the judge is presiding as a senior judge

, and shall refrain from accepting any assignment in any cause in which the judge's present financial business deali ngs, investments, or

other extra

-

judicial activities might be directly or indirectly affected.

(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.- 10

-

FLORIDA RULES FOR CERTIFIED AND COURT

- APPOINTED

MEDI ATORS

RULE 10.100. CERTIFICATION REQUIREMENTS

(a)

– (f) [No Change]

(g) Senior Judges Serving As Mediators. A senior judge may serve as a

mediator in a court

- ordered mediation in a circuit in which the senior judge is not presiding as a judge only if certified by the Florida Supreme Court as a mediator for that type of mediation.

( h )

– (i) [No Change]

RULE 10.340. CONFLICTS OF INTEREST

(a)

– (d) [No Change]

(e) Senior and Retired Judge s

. If a mediator who is a senior judge or r etired judge n ot eligible for assignment to temporary judicial duty has presided over a case involving any party, attorney, or law firm in the mediation, the mediator shall disclose such fact prior to mediation . A mediator shall not serve as a mediator in any case in a circuit in which the mediator is currently presiding as a senior judge

. Absent express consent of the parties, a mediator shall not serve as a senior judge over any case involving any party, attorney, or law firm that is utilizing or has

util ized the judge as a mediator within the previous three years. A senior judge who provides mediation services shall not preside over the same type of case the judge mediates a ny case in the circuit where the mediation services are provided; however, a senior judge may preside over other types of cases (e.g., criminal, juvenile, family law, probate) in the same circuit and may preside over cases in circuits in which the judge does not provide mediation services.

Committee Notes

[No Change]

FLORIDA RULES OF CIVIL PROCEDURE- 11

-

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 mediato r , other than a senior judge presiding as a judge in that circuit ; or

(B) a mediator , other than a senior judge, who is not certified as a mediator but who, in the opinion of the parties and upon review by the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.

(2)

– (3) [No Change]

(k) [No Change]

Committee Notes

[No Change]

FLORIDA RULES OF JUVENILE PROCEDURE

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:- 12

- (A) another certified dependency me diator , other than a senior judge presiding as a judge in that circuit, to replace the one selected by the judge;

or

(B) a mediator , other than a senior judge, who is not certified as a mediator but who, in the opinion of the parties and upon review b y the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.

(f)

– (q) [No Change]

FLORIDA FAMILY LAW RULES OF PROCEDURE

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 , other than a senior judge presiding as a judge in that circuit ; or

(ii) a mediator , other than a senior judge, who is not certified as a mediator but who, in the opinion of the parties and upon review by the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.

(B)

– (C) [No Change]

COMMENTARY

[No Change]