January 24, 1991
Please Note: This Opinion is modified by Opinion 09-88, which advises that a part-time judge may volunteer as a mediator for a program that charges no fee for mediation services, even if the judges court may refer cases for mediation.
Digest: A part-time judge may not serve as a mediator with an agency to which the judge refers court cases and may not serve as a board member for any conflict resolution center which encompasses such agency. A part-time judge may refer cases to a county mediation service where the judge's spouse is employed, but the judge must recuse himself or herself in any case where the spouse has any connection whatsoever with such mediation.
Rules: 22 NYCRR §§100.2; 100.5(e).
A part-time judge, who is a certified mediator, serves without compensation as a board member for a conflict resolution center, which encompasses five counties and is funded by the Office of Court Administration. The judge’s spouse, also a certified mediator, is a coordinator and salaried employee of one of the county offices of the center. The judge has volunteered to be a mediator in cases sent in by other courts, and has served as a mediator in one case in the past year and a half.
Section 100.5(e) of the Rules of the Chief Administrator allows a part-time judge to act as an arbitrator or mediator, provided that the judge “shall do so with particular regard to sections 100.1, 100.2 and 100.3 of this Part.” However, in a previous opinion, this Committee found that a part-time judge may not serve as a mediator with an agency to which the judge refers cases, stating (Advisory Committee on Judicial Ethics, Opinion 90-12, Vol. V):
The judge may serve as a mediator/arbitrator only if his court has no jurisdiction to refer cases to the particular dispute resolution center, or if the judge receives no compensation for his services as a mediator/arbitrator and the center charges no fee for its services.
Since the inquiring judge’s court has jurisdiction to refer cases to the dispute resolution center where the judge would act as mediator, the judge may not serve as a mediator at such center. Similarly, the judge should not serve as a board member for any conflict resolution center that would encompass a service to which the judge could refer cases.
The judge may refer cases to a county mediation service where the judge’s spouse is employed as long as the judge has no association with such agency. The judge’s spouse’s service as a mediator, in such instance, presents no question of judicial ethics. To avoid any appearance of impropriety, however, the judge should recuse himself or herself in any case where the judge’s spouse was the mediator or had any connection whatsoever with such mediation (22 NYCRR 100.2).