Opinion 26-59
March 26, 2026
Digest: A full-time judge may not assist a university in facilitating a “restorative conflict resolution process” for faculty members who are experiencing workplace conflict, where the role of the judge is akin to that of a mediator in a private capacity, even if the overall goal of the process is relationship repair rather than reaching agreement.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(F)-(G); 100.6(B)(1); Opinions 18-145; 17-25; 13-121; 13-72; 12-18; 07-42; 04-21; 03-58; 98-41; 96-76; 92-123.
Opinion:
The inquiring full-time judge, who has professional skills and expertise in restorative practices, has been asked by a private university to assist in facilitating a “restorative conflict resolution process” with faculty members who are experiencing workplace conflict. According to the judge, the process “would involve the use of a structured restorative circle, a dialogue and trauma informed practice commonly used in restorative justice and conflict resolution to address harm, promote understanding, and support constructive dialogue among participants.” The judge indicates that restorative circles are “structured to mitigate and address conflict in interpersonal relationships” and are “not intended to serve as legal mediation or dispute resolution in lieu of formal legal processes.” The judge states that his/her role would be “limited to facilitating the restorative dialogue process and would not involve any adjudicative or decision-making function.” The judge asks if it is ethically permissible for him/her to facilitate the restorative conflict resolution process with or without acceptance of a “reasonable honorarium.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may generally speak, write, lecture, teach, and otherwise engage in extra-judicial activities (see 22 NYCRR 100.4[B]), but must ensure that such activities are compatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially; (2) detract from the dignity of judicial office; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A full-time judge must not provide legal advice (see 22 NYCRR 100.4[G]), nor “act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law” (22 NYCRR 100.4[F]).[1]
Generally, when it is apparent from the facts presented that a proposed extra-judicial activity would require a full-time judge to serve as an arbitrator or mediator or otherwise perform judicial functions in a “private capacity,” we have readily deemed the activity ethically impermissible (see 22 NYCRR 100.4[F]; see e.g. Opinions 96-76 [ecclesiastical court]; 17-25 [tribunal for a not-for-profit entity]; 04-21 [bar association attorney grievance committee]; 92-123 [church-related disciplinary hearing]; 03-58 [justice for a fraternal organization]).
Even in circumstances where a proposed program is not characterized as dispute resolution, we may nonetheless find the functions sufficiently similar to mediation so as to render the activity ethically impermissible for full-time judges. For example, in Opinion 07-42, we advised that a full-time judge may not volunteer to preside over “attendance court” proceedings for a program that sought to “promote improved school attendance for chronically truant students and to provide an alternative for parents (facing) possible educational neglect petitions.” In our analysis, we noted that although the judge “would not … have formal authority to require families to comply with the service plan,” the “judge’s role in presiding over ‘attendance court’ so resembles the function of a mediator that it is tantamount to a mediator’s role” (id. [emphasis added]). Likewise, in Opinion 12-18, a full-time judge proposed to “request Department of Social Services case files for truant children; meet with agency caseworkers, educators, attorneys, and parents to advise them about specific rights and services that may be available to these children under the Education Law; and collaborate with them on ways to improve the children’s school attendance.” Although the proposed collaboration was intended to “improve the education” of truant children, we concluded it was ethically impermissible (id.). In reaching this conclusion, we emphasized that “the judge’s proposed role appears to be that of a mediator, as the judge would invite discussion of specific cases and make specific recommendations in each case about how to improve school attendance” (id. [emphasis added]).
Here, the judge states that the restorative conflict resolution process is “not intended” to serve as legal mediation or dispute resolution. However, the program clearly seeks to address, mitigate and resolve workplace conflicts within the university community, even if the participants’ primary focus is on relationship repair rather than reaching agreement. In our view, these actions support the conclusion that the judge’s role as facilitator of the restorative process is analogous to that of a mediator in a private capacity. Further, on these facts, the judge’s participation in a university’s internal employment dispute could give the impression that the judiciary is endorsing or intervening in the institution’s personnel matters, which would create an appearance of impropriety (see 22 NYCRR 100.2).
Accordingly, we conclude that the inquiring judge may not assist a university in facilitating a “restorative conflict resolution process” for faculty members who are experiencing workplace conflict.
[1] A part-time judge need not comply with Sections 100.4(F)-(G) (see 22 NYCRR 100.6[B][1]). Thus, unlike full-time judges, part-time judges may act as arbitrators or mediators in a private capacity in appropriate circumstances (see e.g. Opinions 18-145; 13-121; 13-72; 98-41). Since the inquirer in the present inquiry is a full-time judge, these opinions do not apply.