March 11, 1993
Digest: A full-time judge may serve on a board of a community mediation service provided he or she is not paid, does not mediate cases, assumes no involvement in the disputes themselves and acts in a purely advisory capacity.
Rules: 22 NYCRR §§100.4(a) and (c), 100.5(a).
A Supreme Court justice inquires whether a judge may serve on the board of his or her town’s community Mediation Project, a branch of the Center for Dispute Settlement.
The purpose of the service is to help residents of the town “solve problems concerning youth, neighbors, relatives, landlords, tenants and others.” The service provides an alternative to the court system. The judge’s court does not refer matters to the Mediation project.
22 NYCRR §100.5(e) of the Rules of Judicial Conduct states in part:
(e) ARBITRATION. No judge . . . shall act as an arbitrator or mediator.
The judge has been asked to serve on a board established to help resolve disputes which are normally before a court for resolution. Serving on the board would not directly involve the judge in arbitration or mediation and thus there would be no literal violation of the rule. Section 100.4(a)(c) of the Rules of the Chief Administrator provides in part that a judge may participate in “activities to improve the law, the legal system, and the administration of justice.”
Encouraging the settling of disputes by alternative methods without involving the courts can be viewed as improving the justice system. By lending his or her expertise to the mediation service, these results can be enhanced. However, the judge should act in a purely advisory capacity, should not be involved in any of the disputes nor should he or she receive any compensation. With these conditions, the judge may accept the appointment. See Opinion 90-19, Vol. V.