When may one judge mediate another judge’s pending case in a local program?

Plain-English summary

Circuit judges proposed a no-fee program in which a judge who did not preside over a pending case would mediate it and report only whether mediation succeeded. They asked whether that service counted as official judicial work.

The Commission applied Rule 3.9, which bars mediation apart from official duties. It contrasted authorized resolution judges in Business Court and Mass Litigation with an informal program. It said a multi-judge circuit could create a presiding-judge and resolution-judge structure through an administrative order sanctioned by the Chief Justice; a legislative enactment or Supreme Court rule would also suffice.

In practice

The opinion ties judicial mediation to a formally assigned official duty, including the specified order or rule routes.

Common questions

Q: May a judge mediate as a private outside activity?

A: No. Rule 3.9 bars mediation apart from official judicial duties even without pay.

Q: How could a circuit authorize the proposed role?

A: The opinion identifies a circuit administrative order sanctioned by the Chief Justice, legislation, or a Supreme Court rule.

Background and rules framework

Rule 3.9 bars a judge from serving as mediator apart from official duties. Comment 1 permits mediation as part of assigned duties. The opinion cites Trial Court Rule 29.07 for Business Court resolution judges and explains that Trial Court Rule 26 does not address Resolution Judges; a Chief Justice order assigned judges to Mass Litigation mediation.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 3.9 and Comment 1, mediation as official duty.

Court rules:

• Trial Court Rule 29.07, Business Court resolution judges.
• Trial Court Rule 26, Mass Litigation framework discussed in the opinion.

See also

• WV JIC Advisory Opinion 2020-17
• WV JIC Advisory Opinion 2021-11

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2019-20, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
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JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

September 10, 2019

Re: JIC Advisory Opinion 20 19-20.

Dear

Your recent request for an advisory op1ruon was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows:

The judges in your circuit are interested in implementing an ad hoc mediation program since many of the parties in pending suits do not have the resources to privately mediate a dispute which may be ripe for negotiation. The presiding judge would not serve as the mediator over a case pending before him/her but would request that another judge in the same circuit serve in that capacity. The mediating judge would then simply report back to the presiding judge as to whether the mediation was successful. The mediating judge would not receive any compensation for his/her service.

By way of example, another judge in your circuit has a pattition suit that is set for ttial on December 3, 2019. The presiding judge believes the matter could be successfully resolved through mediation. One of the pa1ties is represented by an attorney but the other party is representing himsel:tlherself pro se. You have had no prior involvement in the case and you were appointed mediator by agreement of the patties. The mediation is set for the near future.

You want to know whether serving as a mediating judge in such an ad hoc mediation program is within a judge's official duties and therefore permissible pursuant to Rule 3.9 of the Code of Judicial Conduct. You also want to know whether some form of "enabling authotization" must first be obtained and, if so, from whom.

Rule 3.9 provides that " [a] judge shall not act as an arbitrator or a mediator or perfo1111 other judicial func tions apa1t from the judge' s official duties." Comment [ 1] notes

JIC Advisory Opinion 2019-20
September 10, 2019
Page 2 of2

that Rule 3.9 "does not prohibit a judge from paiticipating in arbitration, mediation, or settlement conferences perfom1ed as pa1t of assigned judicial duties. Rendering dispute resolution services apart from those duties whether or not for economic gain is prohibited." Impo1tantly, the Rule makes clear that a judge who engages in mediation as pa1t of his/her official duties does not violate the Code of Judicial Conduct. However, if a judge engages in mediation or arbitration that is not considered an official duty, he/she has violated Rule 3.9.
The key to the Rule then is "official duty."

A judicial officer on Business Cou1t either serves as a Presiding Judge or a Resolution Judge pursuant to Trial Court Rule 29.07. The latter is specifically "authorized to schedule and conduct mediation of the case or any Alternative Dispute Resolution as agreed to by the parties and the Resolution Judge in an attempt to resolve the case in an expedient and efficient manner." Since pa1t of the Resolution Judge' s official duties pursuant to Trial Court Rule 29 are to mediate, he/she does not violate Rule 3.9 of the Code of Judicial Conduct by engaging in such activity.

Like Business Court, the judges involved in Mass Litigation follow the same framework of Presiding Judge/Resolution Judge even though Trial Cou1t Rule 26 1 makes absolutely no mention of a "Resolution Judge." This continuing practice first sta1ted several years ago in a multi-million dollar toxic-to1t class action lawsuit when the Chief Justice of the Supreme Cou1t of Appeals entered an order assigning two judges to assist as mediators. As a result the Mass Litigation Judges who serve as Resolution Judges do not violate Rule 3.9. It is also possible that a multi-judge circuit may set up a Presiding Judge/Resolution Judge structure similar to those of Business Cou1t and Mass Litigation by administrative order; and if it is, in turn, sanctioned by Order of the Chief Justice, the duties would be considered official and not violative of Rule 3.9. Additionally, any legislative enactment or Supreme Court Rule would also suffice.

It is hoped that this opinion fully addresses the issues which you have raised. If there is any fu1ther question regarding this matter do not hesitate to contact the Commission.

Sincerely,

Alan D. Moats, hairperson
Judicial Investigation Commission

ADM/tat

1
This Rule governs Mass Litigation.