Opinion No. 161 (1993)

QUESTION: May a trial judge appoint another sitting judge to serve pro bono as a mediator of a dispute that is the subject of a pending case?

ANSWER: No, because, for the following reasons, it would be inappropriate for the appointed active judge to serve as a mediator:

1. Mediation is not a judicial activity.

A court's referral of a dispute to a mediator initiates a statutory, nonjudicial dispute resolution procedure that is an alternative to and outside of the judicial system. The applicable statute only authorizes a judge to refer the dispute to a "non-judicial" forum. Civ. Prac. & Rem. Code, Sec. 154.021(a)(3). Diverting a pending civil dispute to a nonjudicial forum is analogous to diverting a defendant from criminal prosecution to nonjudicial drug or mental health treatment, outside of the criminal justice system. The purpose of such procedures is to move disputes out of the court system so that courts can devote their limited resources to due process litigation of cases that must be tried. The Code of Judicial Conduct recognizes this principle by locating its mediation provision in Canon 5, concerning extra-judicial activities.

2. Judges should not be mediators in a private capacity.

a. Texas Canon 5E, which prohibits an active full-time judge from acting as a mediator for compensation outside the judicial system but permits a judge to encourage settlement in the performance of official duties, should be construed to have the meaning stated by the corresponding ABA Code provision, which provides that a judge shall not act as a mediator in a private capacity. ABA Canon 4F. Texas Canon 5E does not permit a judge to be a mediator without compensation outside the judicial system. A judge's statutory duty to encourage parties to attempt out of court procedures to resolve a dispute does not imply authority to act as a statutory mediator.

b. Texas Canon 3A(5)(b), concerning one of a judge's "Duties of Office", permits a judge to try to settle a case by conferring separately with the parties, but such an attempt to settle a case in court does not constitute mediation pursuant to the statutory plan.

3. Mediation confidentiality conflicts with judicial duty.

Canon 3A(5)(b) states the only exception to the principle that a judge should not participate in secret proceedings concerning any pending case, and it has a proviso that such ex parte communications in effect terminate the judge's judicial authority in the case. The Committee concludes that, except when using this limited procedure in Canon 3A(5)(b) subject to the proviso, active judges should not be mediators, because a mediator's duty not to disclose confidential information (Civ. Prac. & Rem. Code, Sec. 154.053) may conflict with a judge's duty to disclose certain types of information (such as criminal conduct or a lawyer's unprofessional conduct). Another problem is that being a mediator could involve a judge in litigation under related Sec. 154.073 to resolve a conflict between mediation confidentiality and other law requiring the judge to disclose information.

4. Judge mediation would impair confidence in judiciary.

Widespread judge participation in negotiating and deal making for the purpose of avoiding the judicial system would diminish public confidence in the independence, integrity, and impartiality of the judiciary. A judge should refrain from activities that involve the judge in frequent nonjudicial transactions with lawyers likely to come before the court. Advisory opinions and private conversations with parties and lawyers are essential to mediation; but advisory opinions are not consistent with the constitutional duty of the judicial branch to decide "cases" and "controversies", and ex parte conferences are not consistent with due process or with the adversary.