State of Washington

Ethics Advisory Committee

Question

May a superior court judge conduct a voluntary settlement conference for a civil case that is assigned to another superior court judge?

A superior court is trying to get judges signed up and trained to conduct voluntary settlement conferences for each other. Settlement conference judges do settlement conferences for civil cases assigned to other courts. Most judges use a format in which the parties are in separate rooms and the settlement judge shuttles between them. Some of the conferences are scheduled during lunchtime and others at the end of the business day. None of the judges who conduct the conferences are paid for the work and none of the judges rules or presides over the trial for the cases for which they were the settlement judge. The statements made at the conference are kept confidential unless expressly authorized to be shared per the evidence rule governing settlement discussions.

Answer

CJC Canon 5(E) provides that judges should not act as arbitrators or mediators or otherwise perform judicial functions in a private capacity unless expressly authorized by law. Judicial officers may act in these capacities when they are related to their judicial functions. The limitation is to the performance of these functions in a private capacity unless authorized by law.

Superior court judges may conduct settlement conferences in that court in the manner outlined above. A judicial officer is permitted to perform these judicial duties even if the judicial officer, in the course of conducting a voluntary settlement conference for civil cases assigned to other courts, acts as a mediator because the judicial officer is not acting in a private capacity. The judicial officer may not receive any compensation other than an official salary even when the settlement conferences are held outside of normal court hours.

Opinion 08-03

07/08/2008