Opinion 06-84

June 9, 2006

Please Note: Section 122.10(c) was amended in 2019. The section now reads as follows: “A judicial hearing officer shall not participate as an attorney or, unless appointed by the court on terms including receipt of compensation pursuant to section 122.8 of this Part, as a referee, mediator, or arbitrator, or similar officer, in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court.”

Digest:         A judicial hearing officer may act as a private mediator, if no party to the mediation has commenced an action in a court in which the judicial hearing officer has been designated to serve. The judicial hearing officer is thereafter disqualified from presiding in any matter subsequently commenced by any party to the mediation.

Rules:          NY CPLR 4301; 22 NYCRR 100.2; 100.3(E)(1); 100.6(A); 122.5(a); 122.11; Opinion 01-19 (Vol. XIX).

Opinion:

         A judicial hearing officer (JHO) asks whether it is ethically permissible to act as a private mediator concerning the financial aspects of a matrimonial dispute. The parties to the dispute have not yet commenced a divorce action in any court.

         A JHO is appointed pursuant to Part 122 of the Rules of the Chief Administrator, and is assigned to one or more panels of JHO’s for particular courts in individual counties. 22 NYCRR 122.5(a). The appropriate administrative judge then may assign a JHO from such a panel to preside in a particular action or proceeding. 22 NYCRR 122.5(a). A JHO so assigned possesses all the powers of a referee to hear and determine. NY CPLR 4301.

         In Opinion 01-19 (Vol. XIX), this Committee advised that a JHO may act as a mediator or arbitrator. But a JHO must comply with the Rules Governing Judicial Conduct, and thus must avoid impropriety and the appearance of impropriety in all of his/her activities. 22 NYCRR 100.2; 100.6(A). In the present inquiry, therefore, the inquirer may act as a mediator if no party to the mediation has commenced an action in a court in which he/she has been designated to serve on a JHO panel, and is thereafter disqualified from presiding as a JHO in any matter subsequently commenced by any party to the mediation. 22 NYCRR 100.3(E)(1); 122.11.