January 18, 1990
Digest: Judges may participate in a settlement project sponsored by the local bar association where judges will attempt to settle cases referred by the court.
Rules: 22 NYCRR 100.5(e); Canon 5 of the Code of Judicial Conduct
A judge inquires whether judges may serve as mediators in a program sponsored by the local county bar association. The purpose of the project is to help settle cases. During the designated “Settlement' Week”, no civil trials will be held and, instead, cases deemed suitable for settlement will be referred to the program by the judges sitting in civil parts. Judges will be asked to serve as mediators, without additional compensation, in cases that are not from that judge’s calendar.
Canon 5(E) of the Code of Judicial Conduct provides that, “A judge should not act as an arbitrator or mediator.” However, Canon 5 and section 100.5 of the Rules of the Chief Administrator, which also prohibits a judge from serving as an arbitrator or mediator, cover areas of extra-judicial activities. Thus, section 100.5(e) and Canon 5(E) intend to proscribe only judicial arbitration or mediation in private matters outside the judicial process. The project here does not fall into that category.
In the instant situation, the cases involved are actually pending court cases. The format of the program appears to differ little from the type of settlement conferences judges often hold in civil cases in attempting to resolve litigation. The involvement of the bar association and attorneys in the process is undoubtedly designed to emphasize the importance and desirability of settling litigation and to engender the cooperation of all parties toward that end.
In sum, there does not appear to be any ethical reason for prohibiting judges from participating in this project, which is essentially a court proceeding with a somewhat novel procedural format and is directed toward improving the administration of justice. However, the Committee recommends, to avoid any misunderstanding by the public, that the sponsors of the program consider the feasibility of using terms other than “mediator” or “arbitrator” to describe the function that the participating judges will undertake.