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 Juvenile Procedure and the Florida Family Law Rules of Procedure—Senior Judges Serving as Mediators, Arbitrators, or Voluntary Trial Resolution Judges ( 2021 )

Supreme Court of Florida
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No. SC21-737
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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 JUVENILE PROCEDURE; AND THE
FLORIDA FAMILY LAW RULES OF PROCEDURE—SENIOR
JUDGES SERVING AS MEDIATORS, ARBITRATORS, OR
VOLUNTARY TRIAL RESOLUTION JUDGES.
May 21, 2021
CORRECTED OPINION
PER CURIAM.
The Court, on its own motion, amends the Code of Judicial
Conduct; the Florida Rules for Certified and Court-Appointed
Mediators; the Florida Rules of Civil Procedure; the Florida Rules of
Juvenile Procedure; and the Florida Family Law Rules of Procedure
to authorize a senior judge to preside over criminal cases as a
senior judge in circuits in which the senior judge provides
mediation, arbitration, or voluntary trial resolution services. 1 These
amendments are intended to maintain judicial workflow to the
maximum extent feasible, while ensuring that, when a senior judge
also provides dispute-resolution services, the dual service does not
result in the appearance of or the potential for impropriety.
BACKGROUND
In 1994, the Court authorized senior judges to serve as
mediators and indicated when and under what circumstances
senior judges may do so. In re Code of Judicial Conduct, 643 So. 2d
1037, 1039, 1062 (Fla. 1994). The Court at the same time
explained that it would monitor the application of the new provision
given ethical issues that might arise due to the dual service. Id. at
1039.
In 2005, the Court adopted safeguards to avoid potential
conflicts and the appearance of or the potential for impropriety
when senior judges also provide mediation services. In re Report of
the Alternative Dispute Resolution Rules & Policy Committee, 915 So.
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(d).
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2d 145, 147 (Fla. 2005). Then in 2014, the Court amended the
Code of Judicial Conduct and various rules of procedure governing
senior judges as mediators to provide additional safeguards,
including the prohibition of a senior judge from serving as a
mediator in any case in a circuit in which the senior judge is
presiding as a judge. In re Amendments to Code of Judicial Conduct,
141 So. 3d 1172, 1174 (Fla. 2014). In 2016, the Court amended
the Code of Judicial Conduct to impose a similar prohibition on
senior judges who serve as arbitrators or voluntary trial resolution
judges. In re Amendments to Code of Judicial Conduct, 194 So. 3d
1015, 1015 (Fla. 2016).
Since adopting these ethical safeguards for dual service, the
Court has continued to monitor their application and has remained
mindful of the concerns regarding the propriety of senior judges
providing mediation, arbitration, or voluntary trial resolution
services.
AMENDMENTS
We have determined that a senior judge should be allowed to
preside over criminal cases as a senior judge in circuits in which
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the senior judge provides mediation, arbitration, or voluntary trial
resolution services. Adding this authorization to the Code of
Judicial Conduct and the rules governing the practice will assist in
maintaining judicial workflow and in mitigating the effects of the
COVID-19 pandemic upon the judicial branch and its participants.
It will also ensure that, when a senior judge provides dispute-
resolution services, the dual service does not result in the
appearance of or the potential for impropriety. A senior judge will
not preside over civil cases in a circuit where the senior judge
provides dispute-resolution services. And the other safeguards in
the Code and rules for dual service will remain in place.
Accordingly, we amend the Code of Judicial Conduct; the
Florida Rules for Certified and Court-Appointed Mediators; the
Florida Rules of Civil Procedure; the Florida Rules of Juvenile
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 immediately upon the
issuance of this opinion. Because the amendments were not
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published for comment previously, interested persons shall have
seventy-five days from the date of this opinion in which to file
comments with the Court. 2
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Code of Judicial Conduct, Florida Rules for
Certified and Court-Appointed Mediators, Florida Rules of Civil
Procedure, Florida Rules of Juvenile Procedure, and Florida Family
Law Rules of Procedure
2. All comments must be filed with the Court on or before
August 4, 2021, as well as a separate request for oral argument if
the person filing the comment wishes to participate in oral
argument, which may be scheduled in this case. If filed by an
attorney in good standing with The Florida Bar, the comment must
be electronically filed via the Florida Courts E-Filing Portal (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 nonlawyer or a lawyer not
licensed to practice in Florida, the comment may be, but is not
required to be, filed via the Portal. Comments filed via the Portal
must be submitted in Microsoft Word 97 or higher. See In re
Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No.
AOSC17-27 (May 9, 2017). 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, Florida 32399-1927; no
additional copies are required or will be accepted.
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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) [No Change]
(2) A senior judge may serve as a mediator in a case in a
circuit in which the senior judge is presiding over criminal cases or
in a circuit in which the senior judge is not presiding as a judge, or
in both, only if the senior judge is certified pursuant to rule 10.100,
Florida Rules for Certified and Court-Appointed Mediators. Such
senior 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 not advertise, solicit business, associate
with a law firm, or participate in any other activity that directly or
indirectly promotes his or her mediation, arbitration, or voluntary
trial resolution services and shall not permit an entity with which
the senior judge associates to do so. A senior judge shall not serve
as a mediator, arbitrator, or voluntary trial resolution judge in any
case in a circuit in which the judge is currently presiding over civil
cases as a senior judge. A senior judge who provides mediation,
arbitration, or voluntary trial resolution services shall not preside
over any case in the circuit where such services are provided;
however, a senior judge may preside over criminal cases in circuits
in which the judge does not provides such dispute-resolution
services. A senior judge who provides mediation, arbitration, or
voluntary trial resolution services may also preside over civil and
criminal cases in circuits in which the judge does not provide such
dispute-resolution services. A senior judge shall disclose if the judge
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is being utilized or has been utilized as a mediator, arbitrator, or
voluntary trial resolution judge by any party, attorney, or law firm
involved in the case pending before the senior judge. Absent express
consent of all parties, a senior judge is prohibited from presiding
over any case involving any party, attorney, or law firm that is
utilizing or has utilized the judge as a mediator, arbitrator, or
voluntary trial resolution judge within the previous three years. A
senior judge shall disclose any negotiations or agreements for the
provision of services as a mediator, arbitrator, or voluntary trial
resolution judge between the senior judge and any parties or
counsel to the case.
G. [No Change]
Commentary
Canon 5A - Canon 5F(1). [No Change]
Canon 5F(2). The purpose of the admonitions in this canon is to
ensure that the impartiality of a senior judge is not subject to
question. Although a senior judge may act as a mediator, arbitrator,
or voluntary trial resolution judge in a circuit in which the judge is
presiding over criminal cases or in a circuit in which the judge is
not presiding as a senior judge, or in both, 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 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 the senior judge.
Canon 5G. [No Change]
Application of the Code of Judicial Conduct
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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, 5F(1), and 6A. A senior judge shall not practice law or
serve as a mediator, arbitrator, or voluntary trial resolution judge in
a circuit in which the judge is presiding over civil cases as a senior
judge, and shall refrain from accepting any assignment in any
cause in which the judge’s present financial business dealings,
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
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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.
Commentary
[No Change]
FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED
MEDIATORS
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 presiding over criminal cases or in a
circuit in which the senior judge is not presiding as a judge, or in
both, 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 Judges. If a mediator who is a senior
judge or retired judge not 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 over
civil cases 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 utilized the
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judge as a mediator within the previous three years. A senior judge
who provides mediation services shall not preside over any case in
the circuit where the mediation services are provided; however, a
senior judge may preside over criminal cases in circuits in which
the judge does not provides mediation services. A senior judge who
provides mediation services may also preside over civil and criminal
cases in circuits in which the judge does not provide mediation
services.
Committee Notes
[No Change]
FLORIDA RULES OF CIVIL PROCEDURE
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, other than a senior judge
presiding over civil cases 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]
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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:
(A) another certified dependency mediator, other
than a senior judge presiding over civil cases 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 by 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]
Committee Notes
[No Change]
FLORIDA FAMILY LAW RULES OF PROCEDURE
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RULE 12.741. MEDIATION RULES
(a) [No Change]
(b) General Procedures.
(1) - (5) [No Change]
(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 over civil cases 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]
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