ADR Resources - Ethics

OPINION 001-05
Alabama Supreme Court Commission on Dispute Resolution's First Mediator Ethics Opinion

[This is the first ethics opinion requested of the Alabama Supreme Court Commission on Dispute Resolution. The Alabama Code of Ethics for Mediators was adopted by Order of the Supreme Court of Alabama, December 14, 1995 , and effective as of March 1, 1996 . Any mediator may write the Commission for an opinion about a section of the Code or for an opinion regarding some action based on the Code.]    

Questions Presented:

• May a retired circuit court judge, upon retirement, accept mediation appointments from circuit judges when the case being referred may at one time have been assigned to the retired circuit judge?
   
• Does the extent of involvement in the case make a difference? For example, if the judge merely had signed a HIPAA motion requesting documents, or accepted a mutually agreed upon scheduling order, would such acts preclude the retired circuit judge from accepting the appointment as a mediator?
   
• Should the retired judge accept cases for mediation if the retired judge previously had made a ruling in the case that was dispositive of some issue and in favor of one party over the other party?

Response:

• A retired Judge may accept referrals for mediation made by another judge who had been a judicial colleague of the retired judge. If the retired judge previously had some involvement in the case, he or she must fully disclose the extent of that involvement to all parties to the mediation and allow the parties to request another mediator if either party feels any concern over the inability of the retired judge to be fully impartial.
   
• The greater the retired judge's involvement in the case, the greater his or her Responsibility to evaluate whether he or she can remain impartial and Whether the appearance of lack of impartiality may cause any party to be uncomfortable with the judge as a mediator. The concern about lack of impartiality might not occur until after the parties have engaged in some mediation sessions, and the mediator's actions or words have been evaluated by the parties as being impartial or not, thus the mediator should err on the side of refusing an appointment if there is any doubt in his or her mind about how the question of impartiality may be perceived by the parties. (See Standard Five, Alabama Code of Ethics for Mediators). Specifically to this opinion, the mere act of ruling on a motion, such as discovery request or HIPPA request, in most cases should not automatically preclude a retired judge from accepting an appointment as a mediator in the same case. If in ruling on the motion the judge has received information ex parte, or otherwise, which is not known to the other party, the retired judge should decline appointment as a mediator.
   
• In all cases where the retired judge has made rulings dispositive of some issue in the dispute, the retired judge should decline to serve as mediator. Ruling on a dispositive issue suggests that the retired judge already has determined that one party is right and the other party is wrong on an issue in dispute. The likelihood that the losing party could accept the retired judge's impartiality in mediating on other issues seems so great that the Commission finds that the retired judge should decline appointment as mediator to avoid the appearance of impropriety.

In considering whether to accept appointment as a mediator in a case that previously was assigned to the retired judge, however slight the judge's involvement, the retired judge should keep in mind that parties may be more intimidated in expressing their feelings about impartiality due to the friendship relationship between the retired judge and the appointing judge. It is therefore important that the retired judge be conscious of this potential concern and develop a non-threatening way for the parties to express their view that another person be appointed as mediator. If the parties, or either of them, express a concern about the retired judge's impartiality, it is the duty of the retired judge to withdraw from service as mediator and inform the court only that he or she is unable to serve because of a conflict of interest. The details of the conflict of interest should not be shared with the appointing judge. The freedom of choice in having a mediator with whom all parties are comfortable should be the overriding consideration.