May a judge discuss a pending case privately with its mediator before or after mediation?

Plain-English summary

A judge asked whether the judge could brief an assigned mediator privately about a pending case, whether the mediator could report the outcome or settlement terms, and what to do if improper communications had occurred. The committee considered both the Code of Judicial Conduct and the Mediation Procedures Act. Source: Opinion 21-03, p. 1.

The committee said Rule 21-209(A) barred a judge's private discussion with the mediator about substantive concerns or the parties' positions. Neither the settlement exception for separate talks with parties nor the exception for staff helping with adjudication covered an assigned mediator. A substantive pre-mediation discussion would need the parties included. Source: Opinion 21-03, pp. 1–2.

The mediator could tell the judge whether mediation succeeded, but generally could not disclose settlement terms unless the parties agreed or the Mediation Procedures Act permitted it. The committee treated mediation as separate from adjudication and rejected the suggestion that a mediator becomes an arm of the court for private case discussions. Source: Opinion 21-03, pp. 2–3.

If an improper communication occurred, the committee said the judge should disclose its substance to the parties and allow a response. Depending on the communication, Rule 21-211(A) could require disqualification. Source: Opinion 21-03, p. 3.

In practice

Under this opinion, a mediator's separate role did not permit a judge to pass along private views of the case before mediation. The committee allowed a report of success or failure and treated settlement details according to the Act and the parties' agreement. Source: Opinion 21-03, pp. 1–3.

Common questions

Q: Could a judge privately tell the mediator what the judge thinks about the case?

A: No. The committee said that would be an improper ex parte communication unless the parties were included. Source: Opinion 21-03, pp. 1–2.

Q: Could the mediator report the settlement terms to the judge?

A: The mediator could report whether mediation succeeded, but settlement terms were restricted except as agreed by the parties or allowed by the Mediation Procedures Act. Source: Opinion 21-03, p. 2.

Q: What if the judge and mediator already had an improper private discussion?

A: The committee called for disclosure to the parties and an opportunity to respond; the nature of the communication could also raise a disqualification issue. Source: Opinion 21-03, p. 3.

Background and rules framework

The opinion applied Rules 21-209(A), 21-209(A)(4), and 21-209(A)(3) to pre-mediation contact and the mediator's status, and cited Rules 21-209(A)(1) and 21-211(A) for disclosure and possible disqualification. It separately applied the Mediation Procedures Act's confidentiality provisions to reports of settlement terms. Source: Opinion 21-03, pp. 1–3.

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-209(A), 21-209(A)(4), 21-209(A)(3), 21-209(A)(1), and 21-211(A). Source: Opinion 21-03.

Statutes:

• Mediation Procedures Act, NMSA 1978, Section 44-7B-1 through -6 (2007). Source: Opinion 21-03, p. 2.

Cases:

• U.S. v Johnson, 935 F.2d 47 (4th Cir. 1991), on probation officers as court arms. Source: Opinion 21-03, p. 3.
• U.S. v. Farmer, 2016 WL 7387161 (N.D. Ohio), cited on the same point. Source: Opinion 21-03, p. 3.

See also

• NM Judicial Ethics Op. 21-02: Hearing Officer Ex Parte Emails
• IL Judicial Ethics Op. 2021-1: Unsolicited Ex Parte Email

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 21-03

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

SUPREME Court
LAWL
SANTA FE, NEW Mexico

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair (ret.) This is an advisory opinion by the New Mexico Advisory Paul L. Biderman, Esq. Committee on the Code of Judicial Conduct, Advisory Prof. Robert L. Schwartz opinions are responses to inquiries from judges seeking Hon. Freddie Romero guidance on judicial ethics questions. They are not issued, Hon. Sandra Engel approved, or endorsed by the New Mexico Supreme Court;

nor are they binding.

February 26, 2021

RE: AO 21-03
Dear

You have requested an opinion from the Advisory Committee on the Code of Judicial Conduct concerning the applicability of the Code of Judicial Conduct to interactions between a judge and a mediator when the judge has referred the case to alternate dispute resolution. Specifically, you have asked the following questions:

(1) whether, prior to mediation and outside of the presence of the parties, the judge may discuss the judge’s concerns about the case and understanding of the parties’ relative bargaining positions in order to inform the mediator about the case;

(2) whether, after mediation, the mediator may inform the judge of the outcome of the mediation;

(3) whether, if the mediation is successful, the mediator may inform the court about the terms of the settlement agreement;

(4) whether, when the judge has ordered the mediation, the mediator is an arm of the court; and

(5) if improper communications have taken place between the mediator and the judge, what remedial actions, if any, should be taken.

The issues you raise involve both ethical issues addressed in the Code of Judicial Conduct and procedural issues established by statute.

(1) Discussions with mediator prior to mediation

Generally, the Code prohibits a judge from engaging in ex parte communications. “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside of the presence of the parties or their lawyers, concerning a pending or impending matter . . . .” Rule 21-209(A) NMRA. Although a judge may, with the consent of the parties, “confer separately with the parties and their lawyers” in efforts to settle cases, this exception to the prohibition of Rule 21-209(A)(4) does not give the judge the ability to separately confer with an assigned mediator regarding the substance of a case. Nor, as we later discuss, does the Committee believe that an assigned mediator is a member of “court staff” or a “court official” whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities.” See Rule 21-209(A)(3) (excepting from the prohibition against ex parte communications “court staff and court officials whose functions are to aid the court in carrying out the judge’s adjudicative responsibilities”).

Although a judge may believe that a mediator may be able to better mediate a case if the judge provided input regarding the judge’s substantive concerns prior to mediation, by the nature of such concerns, one party may receive an advantage and another may be prejudiced by such a discussion. The discussion would be an improper ex parte communication unless the judge included the parties in the communication.

(2), (3) Informing judge of outcome of mediation and/or terms of settlement

The Mediation Procedures Act, NMSA 1978, Section 44-7B-1 through -6 (2007) (MPA) addresses mediation proceedings. As defined by the MPA, “mediation communication” is “a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing or reconvening a mediation or retaining a mediator.” § 44-7B-2(B).

Under the MPA, mediation communications, which include the agreement reached by the parties, are confidential except as specifically provided. Under the exceptions, an agreement is not confidential when “evidenced by a record signed by the mediation parties” except when the parties designate parts to be confidential, or as otherwise provided by law or by the parties. § 44-7B-5(A) (1), (2), (6), (D)(4).

The Committee believes that the mediator may communicate to the judge whether the mediation has been successful, but may not, except as may be agreed by the parties or as allowed by the MPA, disclose the terms of the settlement.

(4) Role of mediator

The MPA defines “mediation” as “a process in which a mediator (1) facilitates communication and negotiation between mediation parties to assist them in reaching an agreement regarding their dispute; or (2) promotes reconciliation, settlement or understanding between and among parties.” § 44-7B-2(A). In practice, mediators can be individuals in private practice or employees of a mediation program, including those created or administered by a court. § 44-7B- 2(D), (E).

As we have discussed, Rule 21-209(A)(3) allows a judge to “consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, . . .” The Committee, however, considers the mediation process to be separate from the adjudicative process. Indeed, the court will generally stay the adjudicative process while a case is in mediation. Mediators do not provide information to the judge for the judge to use in making adjudicative decisions. The Committee does not believe that Rule 21-209(A)(3) permits ex parte communications with the judge. Nor does the Committee believe that a mediator becomes an “arm of the court” so as to permit ex parte communications with the judge. Generally a court employee or official may be considered an “arm of the court.” See Black’s Law Dictionary, 1834 (11th ed. 2019) (defining “arm of the court” as “[a]n officer of the court who performs tasks or duties related to the court’s functions). However, in the context of ex parte communications, this definition must be read in connection with Rule 21-209(A)(3), which specifically limits ex parte communications with a court official to those assisting the judge in the judge’s adjudicative responsibilities.

By way of example, probation officers who gather information and prepare a presentence report do so for the judge and have been held to be “arms of the court” permitting ex parte communications with the judge. U.S. v Johnson, 935 F.2d 47, 49-50 (4th Cir. 1991); U.S. v. Farmer, 2016 WL 7387161 (N.D. Ohio). Mediators, in contrast, act independently of the judge. Their involvement with the parties is for the purpose of mediation rather than to enable the judge to make an adjudicative decision.

(5) Remedial action

If a judge becomes aware of an ex parte communication concerning mediation, the judge should disclose the substance of the communication to the parties and provide them an opportunity to respond. Cf. Rule 21-209(A)(1) (allowing a judge to engage in ex parte communications for scheduling, administrative, or emergency purposes provided “the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond”). Depending on the nature of the communication, the judge may be disqualified from further proceedings in the case. See Rule 21-211(A) NMRA (“A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. . . .”).

James J. Wechsler
Chair