PLEASE R IS E .

PLEASE BE S EA TE D .

GOOD MORNING AGA IN. W ELCOME . WE H AV E A S O UR LAS T C AS E O N THIS MORNING'S C ALEN DA R IN RE: R EPORT OF THE ALT ERNATIVE D IS PUTE R UL ES AND P OL IC Y C OMMI TT EE O N SENIOR J UDGES. AND I U ND ER STAN D JUD GE BRIESE WILL BE PRE SENT IN G . J UDGE MCN EA L ARE Y OU G OI NG TO BE PRE SENTING A S WELL?

I'M ON T HE OTHER S ID E .

OK AY. WAS THERE A C OM MENT F ILED ?

YES, MA'AM. I FILED A R ESPO NSE O N B EHAL F OF THE FAM IL Y LAW R UL ES COMMITTEE.

ALL RIGHT. AND SO H OW MAN Y M IN UT ES HAV E YOU BEEN ALLOC AT ED ?

EACH S IDE W AS ALL OCATED 20 MINUTES.

ALL RIGHT. I THINK THAT T HE XER OX L OOKED LIKE YOU H AD 0 -0 . OKAY. IF YOU ARE R EADY , Y OU M AY P ROCEED.

GOOD MORNING, MAY IT PLEASE THE COURT. I AM SHA WN BRI ESE AND I CHAIR THE ALTERNATIVE DISPUTE RESOLUTION RULES A ND P OLICY C OM MITT EE, A ND I A M HERE TO ARG UE F OR THE A DOPTION OF THE RECOMMENDATION CONTAINED IN THE COM MITTEE'S SEN IOR JUDGES AS MEDIATO R S A MENDED FINAL REPORT FILED WITH THE COURT ON M ARCH 2 4.

I H AVE A N INI TIAL QUESTION. I JUST WANT TO M AK E SURE THAT I UND ER STAN D T HI S . PRI OR T O THESE R EC EN T A MENDMENTS , THE C OM ME NTAR Y TO S EC TION B H AD E SSEN TI ALLY , T HE WAY I R EA D IT , A T LEA ST PROHIBITED, A J UD GE F RO M ACCEPTING A JUDIC IAL ASSIGNMENT FOR THAT TYPE O F CASE IN THE S AME C OURT WHERE THE JUDGE WAS M EDIATE !!IN G THESE CASES SO I F A JUD GE , FOR EXAMPLE, WAS MED IA TING P ERSONAL I NJ URY C ASES , T HA T JUDGE COULD NOT S IT I N THE CIVIL POSITION OF THAT COURT. IS IT THE I NTENT OF T HE COMMITTEE TO ACTUA LL Y D O AWAY WITH T HA T COMME NTAR Y?

IT IS.

SO IN OTHER WORDS I T WIL L ACTUALLY, MY CONCERN IS BECAUSE I T HINK WE WERE LOOKING TO ACTUALLY STRENGTHEN THESE PROHIBITIONS AND IT LOOKS LIKE THEY H AVE BEEN W EA KEN ED .

ALL I N ALL I THI NK T HEY HAVE BEEN S TR EN GT HE NED.

WHEN YOU SAY S TR ENGTHE NE D , I'VE GOT REAL CONCERNS , JUDGE BRIESE, AND IN Y OU R OWN SURVEY , F OR E XAMP LE , I T TALKED ABOUT QUE STIONS WITH REGARD TO THE U SE O F JUDICIAL STATUS TO GAI N M EDIATION S. THE C OM ME NTS WER E S ENIO R JUDGES SHOULD GIVE U P H IS O R H ER P RACT IC E U NL ES S T HAT IT IS LESS THAN ONE P ER WEE K. THEY TALK ABO UT , W E D ON'T HAVE A PROBLEM BUT I HAVE ADS IN THE BAR THAT I A M CONCERNED ABOUT. ADDITIONAL COMMENTS THATTALK ABOUT T HA T S AY , W ELL , S ENIOR JUDGES HAVE P AID THEIR DUES SO THEY CAN D O WHATEVER THEY WANT. MEDIA TIONS ARE A REQ UIREME NT AND ALTHOUGH T HE Y A RE REQUIRED, A JUDGE M EDIA TO R A LWAYS HAS AN ADVANTA GE BECAUSE IT IS IMPLIED T HA T HE IS G OING TO G ET T HAT BUSINESS . COMMENTS, I R EC OG NI ZE T HAT MEDIATION AND JUDGING S HO UL D NEVER MIX. THE USE O F J UD ICIAL S TATUS TO GAIN M ED IA TI ON REF ER RALS IS UNETHICAL A FT ER H AV IN G RECEIVED THE COMMENT THAT ITIS IMPLIED. IN M Y CAS E , I S IT A S A SENIOR JUDGE IN THE 5TH CIRCUIT BUT I W OULD N EVER MEDIATE IN THE 5TH C IRCU IT ANY P OSSIBLE CONFLICT OF INTEREST IS A BAD I MA GE F OR SENIOR JUDGES AND I T HINK IT IS VERY INA ROPR IA TE FOR SITTING JUDGES TO MEDIATE AND I SEE T HOSE C OM ME NT S A ND I'M SAYING MY G OODNES S , A ND I LOOK AND I UND ERSTAN D T HA T IT IS B EING -- T HI S S EEMS TOTALLY INC ON SISTEN T WITH THE COMMENTS FROM YOUR OWN SURVEY.

THEY ARE C UR RENT LY I S N O PROHIBITION TO M ED IA TI NG A ND BEING A SENIOR JUDGE I N T HE SAME G EO GR AP HI C L OCAT ION. THE RULE D OESN'T REQ UIRE THAT OR DOE SN'T PRO HI BI T THAT. THAT IS ONLY IN THE COMMENTARY AND OF COURSE COMMENTARIES DO NOT HAVE THEFORCE OF RULES.

BUT J US TI CE OVE RT ON WHO WAS THE A UTHOR O F THIS , A CTUALLY HAD A SS UMED T HE RE WAS AN O UTRI GH T GEO GR AP HI C AL LIM IT ATION BECAUSE Y OU REMEMBER AND MAYBE YOU DON'T , BUT GOING BACK IN THE COURT'S FILE T HA T I T WAS ACTUALLY THE REC OMMENDATION OF THE ORIGINAL COM MITT EE THAT THERE BE A N O UT RI GH T BAN ON IT , AND S O T HE COMPROMISE W AS T HI S C OMPROMISE THAT AT THE VER Y LEAST AT LEAST THAT'S THE WAY IT W AS REA D I S THA T THERE SHOULD BE A LIMIT O N THE TYPE O F -- A T T HE VER Y LEAST THE TYPE OF CASES .

WELL , I NT ER ESTI NGLY ENOUGH, THE WHOLE ISSUE HER E IT SEEMS TO M E I S A EA RANC E , AEARANCE OF WHETHER OR NOTTHERE IS AN I MPROPR IE TY A ND MAINTENANCE OF THE P UB LI C TRUST IN THE J UD ICIA RY A S A PUBLIC OFFICE AND ALS O T O INSTILL PUBLIC TRUST IN T HE MEDIATION PROCESS. IN THE 1 3 Y EA RS T HAT T HE FLORIDA RULES FOR CERTI FYIN G A COURT A OI NT ED MEDIA TO RS HAVE BEEN IN PLACE THERE HAS BEEN NO P UBLISHED COMPLAINT AGAINST A SENIO R JUD GE ACTING AS A MEDIATOR O R V IC E VERSE A. THEY DO NOT EXIST .

Y OU DON'T BEL IE VE T HAT IF A S ENIO R J UDGE I S A OI NTED TO DO A P ER SO NAL I NJUR Y C AS E T HEY O R W RO NG FU L D EA TH C AS E OR SOMETHING, AND HAN DLES THA T CASE AND THEN T WO W EEKS FROM N OW , I N FAC T , M ED IA TE S A PERSONAL INJUR Y CAS E O R A WRO NGFUL DEATH C ASE THA T YOU DON'T THINK THERE IS ANY A EARANCE IN T HA T K IND OF SITUATION WHERE H E IS ADJUDICATING A ND MED IA TI NG THE SAME KIND OF C AS ES ?

A EA RA NCES A RE B ES T DEALT WIT H AS T HE COMMI TTEE H AS WITH T RAIN IN G , W IT H THE N OTICE P ROVISION AND WITH THE EDUCATIONAL R EQUIRE ME NT S . THE NOT IC E PRO VISI ON REQUIRES A MEDIATOR W HO H AS SAT AS A S EN IO R JUDGE , AND H AS HAD A P AR TY , A N A TT OR NE Y OR A LAW F IRM A EA R I N FRONT OF THAT SENIOR J UDGE T O NOTIFY THE P AR TIES TO T HE MEDIATION OF THA T B EF ORE MEDIATION STARTS . > > EVEN YOUR E DUCA TION AL REQUIREMENT, AS I UND ERSTAND IT, IS O NE C OU RS E I N EIT HE R M EDIATION O R JUD IC IA L - - O N THE J UD ICIAL C ODE. IS THAT WHAT YOU ARE RECOMMENDING?

THAT IS A S IN GL E C OURS E FOR SENIOR J UD GE S W HO I NTEN D TO MEDIATE S O T HE SEN IO R JUDGE CAN BE T UN ED I N T O THE ETHICAL ISSUE S INV OLVI NG DUAL SERVICE. THE OTH ER E DU CA TI ON P ORTI ON OF THIS IS THE TRA IN IN G PROVIDED IN THE CERTIFICATION. THE COMMITTEE IS P ROPO SI NG THAT ANY SENIOR J UDGE WHO INTENDS T O MEDIATE SHOUL D B E REQUIRED TO BE CERTIFIED BY THE SUPREME COURT U NDER THE RULES O F CER TIFI ED A ND COURT -ORDERED MEDIATION.

WELL , E VEN I F IN T HI S SAME SITUATION IF A SEN IO R JUDGE IS GOING T O D O PERSONAL INJURY CASES AND MEDIATE THOSE KIND OF C AS ES , SHOULDN'T THERE AT LEAST B E SOME KIND OF G EOGR AP HICA L THEN R ES TRICTION PLACED O N THAT, THAT YOU WOULD NOT D O THOSE IN THE SAME G EOGR AP HI C A REA ?

THE C OM MITT EE H AS T AKEN THE POSITION, A ND I THINK A WELL- FOUNDED POSITION THA T THERE DOESN'T NEED TO BE ANY GEOGRAPHICAL OR SUBJE CT MATTER LIMITATIONS.

BUT YOU DO ADM IT A ND N OT ADMIT, YOU ARE NOT U NDER CROSS EXAMINATION, THAT T HA T WAS, WHETHER I T W AS MANDATORY IN T HE RUL E , I T WAS IN THE C OMME NTAR Y T HA T THERE BE T HA T C AS E T YP E LIM ITATION?

IT IS C UR RE NT LY I N A COMMENTARY OF SECTION B.

DID YOU , I N Y OU R COMMI TTEES LOOKING AT T HI S , LOOK AT THE ISSUE O F A BO UT REALLY HOW MAN Y J UD GE S A RE ACTIVELY INVOLVED IN MEDIATION A ND A CTIV E LY INVOL VED IN S ENIO R JUDGI NG ? AND THE REASON I ASK T HA T I S I P ULLED THIS UP THI S MOR NING FROM A N OOSITE WAY. SOMEONE LIKE JUDGE M AJOR WHO FILED A COMMENT ABOUT HOW CONCERNED HE WAS THAT T HI S NOT BE A LIED T O A EL LATE JUDGES, HE H AD - - HE I S U P FOR S ENIOR J UDGE REN EWAL AND HE SAID HIS M EDIA TI ON C AS E LIST IS TOO N UMER OU S T O PROVIDE AT THAT TIME , BUT H E DIDN'T SIT AS A J UNIO R J UD GE EITHER IN 2 00 4 O R 2 00 5. JUDGE M CC AULE Y FRO M T HE 4TH DISTRICT, H E M EDIATE D MO RE THAN 500 C ASES , BUT H E DIDN'T S ERVE A NY O F T HE A S A S ENIOR J UD GE , J UD GE C AR LYLE LISTED 1 29 A ND H E D IDN'T. SO MY CONCE RN I S WE' VE G OT SITUATIONS AND MAYBE WE N EE D TO LOOK AT IT THE O THER WAY OF PEOPLE USING T HE STATUS OF SAYING THEY ARE A S EN IO R JUDGE EVEN THOUGH THEY ARE NOT REALLY D OI NG SEN IOR JUDGE WORK, A ND THA T T HA T' S ENHANCING THEIR MEDIATION PRACTICE, AND THAT W OULD B E ANOTHER CON CE RN . OF COURSE, IT W OULD N' T EVE N BE -- WOULDN 'T B E D EALT WIT H IN ANY OF THE CUR RE NT R ULE OR THE NEW R ULES , W HICH I S THAT JUDGES ARE U SI NG T HEIR STATUS AND SAYING THEY ARE SENIOR J UDGES BUT A REN' T REALLY INTENDING TO FIT OR FOR WHAT OTHER REA SON T HEY ARE NOT BEING CALLED. SO WAS THAT LOOKED A T A T ALL?

I T W AS . T HE ONE - - O NE O F T HE I SS UE S , ONE OF THE CONCERNS THA T THE COMMITTEE WAS SEEKING T O ADDRESS IS H OW A J UD GE WHO IS A M ED IA TO R CAN A FFEC T A PARTY 'S SELF D ET ER MI NATION BY SIMPLY BEING A S EN IO R JUDGE, AND WE FEE L T HAT T HE REQ UIREMENT F OR CERTIFICATION FOR N OT IC E AND IF THERE IS A CON FLIC T , I F T HE NOTICE IS PUT O UT T HERE AND T HE P AR TI ES S AY , WELL , WE DON'T WANT YOU O N A C ASE THEN THE MEDIATOR NEE DS T O BACK AWAY F ROM THE CASE.

BUT ONE OF T HE C HA RG ES FOR THE COMMITTEE WAS TO SEE WHETHER THERE SHOULD BE A LIM ITATION ON THE NUMBER OF MEDIATION THAT IS D ONE AND I THINK THAT MY CONCERN, O F COURSE, I N T HA T , W AS T HA T W E DON'T WAN T THE S ENIO R J UDGE S TATUS TO B E U SED TO GET BUSINESS, AND O F COU RS E WE'RE GOING TO BE LOOKING AT THE ISSUE O F W HE TH ER S EN IO R JUDGE PAY IS JUS T RIG HT N OW SO OUT OF WHA CK T HAT I T REALLY NEEDS TO BE RAISED SO GIVE JUDGES MORE OF AN INCEN TIVE TO SERVE A S SEN IO R JUDGES BUT WHEN YOU R EACH A POINT WHERE S OMEBODY I S M EDIATING 1 00 , 2 00 , 3 00 CASES A Y EA R , SHO UL D T HA T P ERSON, I NDIVIDUAL BE ABL E TO SIT AS A SENIO R J UD GE O R SAY THAT THAT P ERSON I S CERTIFIED AS A S EN IO R J UDGE OR DO YOU T HINK THAT I S SOMETHING THAT THE COURTSHOULD LOOK AT AS FAR AS THEIR S ENIOR JUDGE CERTIFICATION?

THE QUEST IO N WOU LD T HE N BE HOW DO YOU M EA SURE MEDIATIONS? DO YOU MEASURE THEM BY MEDIATION SESSIONS? DO YOU MEASURE THEM B Y S HE ER NUMBERS OF MEDIATI ONS? DO YOU MEASURE THEM BY DOLLAR VALUE? DO YOU MEASURE THEM BY COMPLEXITY? THERE COULD BE 5 0 MED IATI ON S THAT ARE V ER Y S TRAI GHT-FORWARD MEDIATIONS THAT DON'T P RE SE NT CONFLICTSOF INTEREST. THERE CAN BE ONE THAT D OE S. SO SHEER N UMBE RS D OESN'T NECESSARILY MEA N T HA T T HERE ARE CONFLICT I SS UE S . IT SEEMS TO M E T HA T T HE ISSUE HERE IS A EARA NCE , AND THE HIS TO RY HAS B EE N THAT THERE HAVE BEEN N O PUBLISHED COMPLAINTS , A ND THE COMMITTEE TAK ES T HE POSITION THAT I F S EN IO R JUDGES ARE GOING TO MEDIATE THEY NEED TO BE CER TI FI ED . THE WHO LE C ODE O F JUD IC IA L CONDUCT SETS FOR TH CONSTRAINTS ON JUDGES , AND IF A JUDGE IS GOING TO ENGAGE IN T HIS DUA L ROL E , T HE JUDGE SHOULD HAV E T O B E FAMILIAR WITH ALL OF THE EDUCATIONAL REQUIREMENTS, MEET ALL OF THE STA NDAR DS T HAT T HE R UL ES REQ UI RE . > > YOU THINK T HAT W OULD B E A S IGNIFICANT A DV AN CEME NT A S FAR AS HAVIN G THA T COU RT O RDER, T HE SUPREME COU RT CERTIFICATION?

SEC ONDL Y --

WHAT ABOUT IF YO U A RE ARBITRATING, IS THA T EXEMPT FROM ANY OF THIS? IN OTHER WORDS, CAN A S ENIO R JUDGE ENGAGE IN A RB IT RA TI ON ?

A RB ITRA TO R S A RE C OV ERED , I BELIEVE, I N T HE C ANON I N SECTION 5 F IF M Y M EM OR Y SER VES ME C OR RE CTLY . THERE IS N O C UR RENT STATEWIDE CERTIFICATION F OR ARBITRATORS. FOR WHATEVER REASON , FLO RI DA YEARS AGO W EN T T HE MED IATI ON ROUTE AND NOT THE ARBITRATION ROUTE. CERTAINLY THAT IS SOMETHINGTHAT THE COMMITTEE NEEDS TO LOOK AT I N THE F UTUR E B UT THERE IS NO STATEWIDE CERTIFICATION FOR ARBITRATORS AND THE R ULE CURRENTLY PERMITS S EN IOR JUDGES TO ACT A S M ED IA TORS AND ARBITRATORS.

SO IN OTHER WORDS THAT WOULD NOT BE SUBJECT TO RIGHT NOW TO THE CODE - - WOULD IT BE SUBJECT TO THE CODE OF J UDICIAL CONDUCT?

IT IS. IT IS IN THE COD E O F JUDICIAL CONDUCT. MY M EMORY C UR RE NT LY I T I S I N THE C OM MENT AR Y S ECTI ON . WE ARE PROPOSI NG O N DOI NG AWAY WITH THA T COM ME NT AR Y SECTION A ND P LA CING I T I N CANON 5 F.

I H AV E A NO THER C ONCE RN I S YOUR PROPOSAL A BO UT DISCLOSURE. AND IT SEEMS TO M E T HA T UNDER THESE DISCLOS UR E PROVISIONS THE BURDE N I S REALLY, WELL , NOT R EALLY A BURDEN, B UT T HE P ARTY W HO T HEN HAS T O S AY W HE THER THE J UDGE SHOULD NOT H EA R THE MEDIATI ON O R I S A LLOW ED T O H EAR THE MED IA TI ON , B UT W HY SHOULD THAT BE ON T HE PAR TY B ECAUSE I MEA N I F A J UD GE IS MEDIATING AND SITTING A S A SENIOR JUDGE IN THE SAM E C IRCUIT A ND T HE Y ARE I N T HE SAME CIRCUIT, I T J US T S EEMS TO ME THAT THE LIKELIHOOD O F THE PARTIES S AY IN G NO I S N OT AS GREAT A S I F THE J UDGE W AS R EQUIRED T O J US T N OT TAK E THAT MEDIATION B ECAU SE A T SOME P OI NT H E H AD HAD A C AS E WITH ONE OF THE P ER SO NS?

I THINK JUD GE S G O T HROUGH THAT PROCESS EVERY DAY. WHEN A J UD GE PUT S O N T HE RECORD A P OT EN TI AL CONFLICT, WHETHER IT'S S OCIA L A CTIVITIES OR BEING A M EMBE R OF A CLUB OR G RO UP , P UT S I T OUT ON THE RECORD , IT I S ASSUMED THAT THE JUDGE HAS GONE THROUGH THE PROCESS AND IF THE J UD GE C ANNOT IMPARTIALLY HEAR THE CASE THE JUDGE W IL L REC US E HIMSELF O R H ERSE LF . IF THE J UD GE D OE SN 'T R EA CH THAT LEVEL, PUTS IT ON THE RECORD THAT'S AN OFFER TO GET OFF OF THE CASE TO EITHER PARTY. AND IT IS NO D IF FERENT I N THE M ED IA TI ON C ONTE XT . IF THE JUD GE H AS SERVE D O N THE CAS E IN WHI CH A PAR TY , COUNSEL OR LAW FIRM W AS INVOLVED, H E OR S HE H AS T HE O BLIGATION UNDER THE PROPOSAL TO MAK E THA T K NOWN.

HOW DOES I T W OR K PRACTICALLY? AT WHAT POINT WOULD T HE JUDGE -- WOU LD THE J UDGE M EDIATOR MAKE THE DISCLOSURE?

IT WOULD S EEM TO ME AT THE BEGINNING OF THE MEDIATION AS PART OF THE OPENING ORI EN TA TION A ND A S S OON A S T HE J UD GE GET S A C ASE THAT THERE I S A POTENTIAL CON FLICT THAT T HE JUDGE R ECOGNIZES. NOW, CERTAINLY JUDGES WHO HAVE BEEN ON THE BENCH F OR MANY YEARS WON'T R EC ALL A LL OF THE CASES T HA T T HE Y HAV E D EALT WIT H AND A B LA NKET STATEMENT THAT THE JUDGE HAS BEEN ON THE BENCH FOR MAN Y YEARS AND THERE IS A POSSIBILITY T HAT THE J UD GE HAS HEARD A CASE INVOL VI NG A P ARTY SHOULD COVER THE BAS E AND T HE JUD GE S HO UL D I NVITE THE PARTIES T HROU GH C OU NSEL T O REV EA L ANY T IM E T HA T THE JUDGE HAS S ERVE D AS A MED IATOR O R V ICE V ER SA . > > LET ME B AC K UP A LITTLE BIT. FROM YOUR P RACTIC AL EXP ERIENCE AND U ND ERST ANDI NG , MOST JUDGES WHO S ERVE A S MEDIATORS A RE THE Y N OT SELECTED BY BOT H S ID ES ? WHAT'S T HE COM MON EXPERIENCE ACROSS THE STATE?

GENERALLY T HAT'S THE CAS E . GEN ERALLY THAT'S THE C ASE. IT IS A RAR E O CCASIO N W HERE A JUDGE O N T HE C AS E I S PICKING A MEDIA TO R , B EC AUSE THERE I S A D ISPU TE B ET WE EN THE PARTIES. WHETHER IT IS A JUDGE OR NONJUDGE MED IATO R . THE SEN IO R J UDGE , W HO I S A MEDIATOR WHEN S IT TING AS A JUDGE SHOULD BE REQUIRED T O DISCLOSE IF THE JUDGE IS BEING UTILIZE D O R HAS B EE N UTI LIZED A S A M EDIA TO R B Y ANY OF THE PAR TIES WHI CH I NCLUDE C OU NSEL O R THE LAW FIRM . ABSENT EXPRESS CON SE NT O F ALL OF THE PARTIES AND T HIS IS WHERE SELF D ET ERMI NA TION COMES IN A SENIOR JUDGE SHOULD BE PROHIBI TED FROM SITTING ON A CASE IN W HI CH A SEN IOR JUDGE OR P RE SIDING OVER A CASE INVOL VI NG A PARTY, ATTORNE Y O R L AW F IR M WHEN THE S EN IOR JUD GE I S BEING UTI LIZED AS A M ED IATO R OR HAS BEEN UTI LI ZE D I N T HE PREVIOUS THREE YEARS.

THAT'S SORT OF SELF - - I MEAN, THAT W OULD BE SELF-EVIDENT? I MEAN, THAT WOULD B E A N ABSOLUTE AEARANCE OF IMP ROPRIETY, C OR RECT ?

T O A NSWER T HE Q UESTION YES AND WE CHOSE T HREE YEA RS A S BEING A N A RO PR IA TE AMOUNT OF T IME F OR T HE ABSOLUTE BAN, BUT THERE I S AN EXPRESS W AI VE R P RO VI SION BECAUSE MEDIATION IS ALL ABOUT PARTY SELF DETERMINATION, AND IF THE PARTIES SAY WE DON 'T C ARE , WHY SHOULDN'T THE JUDGE BE ABLE TO MEDIATE THE C ASE? I'M SORRY, WHY S HOUL DN'T THE JUDGE BE ABLE T O S IT O N T HE CASE IF THE P ARTIES DON'T CARE? AND WE'VE ALREADY TALKE D ABOUT IT .

I GUESS IT IS A Q UESTION OF WHETHER -- HOW IT LOO KS TO THE SYSTEM , YOU K NO W , IN OTHER WORDS W E'VE G OT A N OBLIGATION TO LOOK AT I T FROM THE O VE RA LL Q UE ST IO N O F WHAT THE PUB LI C W OU LD T HI NK ABOUT IT, NOT J US T T WO P ARTIES NOT C AR IN G A T T HA T MOMENT. ABOUT IT .

AND T HE COM MI TTEE WOU LD SUGGEST THAT THE CERTIFICATION PRO CESS FOR ALL SENIOR J UD GES , THE DISCLOSURE R EQ UIRE ME NT S A ND THE EDU CA TI ONAL C OU RS E WOULD MEET THOSE CON ST RA INTS . AS I SAID , I T R EA LL Y I S N O DIFFERENT THAN A JUDGE WHO WAS PRE SI DING ON THE C ASE WHO HAS S OME RELATIONSHIP WITH SOMEONE ON THE C AS E THAT DOESN'T CAUSE THE JUDGE TO AUTOM ATICALLY R ECUS E , P UT IT OUT T HERE A ND L ET THE PARTIES DETERMINE WHETHER ORNOT THEY WANT THE JUDGE TO REMAIN ON THE CASE.

REMIND M E W HAT O TH ER STA TES ARE DOI NG I N T HI S R EGARD.

RIG HT N OW F LO RI DA I S A MONG 3 1 S TA TE S I N T HE MAJORITY THAT ALLOW S EN IO R JUDGES TO MEDIATE . AND IN THA T V AIN , I GUESS I T IS AP PROPRIATE TO P OINT O UT , THAT THE C URRE NT CODE O F JUDICIAL CONDUCT, WHI CH WAS PASSED IN 1 99 4 , PRO VI DE S THAT SENIOR J UDGE S C AN A CT AS M ED IA TORS WIT H - - UND ER CERTAIN CONDITIONS.

AND WOULD THE S ENIO R JUDGES WHO ARE PRESENTLY MEDIATING T HE G RAND FA THER ED IN AND NOT H AV E T O D O T HE CER TI FICATION R EQUIREMENT OR AT SOME P OINT W OU LD T HEY BE R EQUIRED T O G O T HROU GH T HA T?

MY M EM ORY I S THAT T HAT WAS NOT DISCUSSED BY THE COMMITTEE, BUT THEY SHO UL D AT SOME POINT B E R EQUIRED T O MEET THE CURRENT STA ND AR DS .

WELL , THE C ON TEMP LATION WAS THA T ALL - -

CORRECT.

OF THE R EQUIRE MENTS. LET ME ASK YOU A BROADER QUESTION. I REALIZE YOU ARE INTO YOUR REBUTTAL TIME B UT I WANT T O GIVE YOU A CHANCE TO SORT OF COMMENT ON ONE OF THE CONCERNS OF THE COURT, A ND IT GOES BACK T O Y OU R S TATEMENTS ABO UT A EARA NC E. THAT IS , T HA T W E ALL K NO W , OF COURSE , T HA T A S ITTI NG JUDGE C AN NO T S IT A S A PRIVATE MEDIATO R O R ARBITRATOR A ND T HA T T HA T H AS LONG BEEN THE R UL E. WHAT HAS HAENED IS WE H AV E BEEN SO SUC CE SS FU L IN T HE STATE OF FLORIDA T HA T W E HAVE N OW E XT ENSI VE N UMBE RS OF LAW YE RS A ND R ET IRED JUDGES AND O THER S W HO N OW H AVE M ED IA TI ON F IRMS , I F Y OU W ILL, AND S O ONE O F T HE CONCERNS OF T HE COURT I S T HIS IDEA T HAT A R ET IRED JUD GE JOINS THE L AW F IR M . NOT A M EDIATI ON F IR M BUT B Y A SLIP OF THE TONGUE YOU C AN SORT OF SEE OUR CON CE RN ABOUT AEARANCE, A ND FOR MOST OF THE Y EA RS I N T HE BUS INESS OF BEING A M EDIA TO R , AND AS PART OF A F IR M T HA T HAS A NAME , Y OU KNO W , J US T LIKE A LAW FIRM O R W HA TE VE R , AND THEN FROM T IME T O T IM E IT A EARS THAT T HAT M EMBER OF THAT F IR M , WH IC H I S I N THE BUSINESS TO M AK E M ON EY , AND THEN TO D O B US INES S , THEN GOES BAC K O N T HE PUB LI C SERVICE AND P UT S ON T HE R OPE , A ND THAT THERE IS A BAC K AND FORTH TO THIS T HING THA T T HE COU RT IS VER Y C ON CERNED ABOUT T HE A EARA NC E O F THAT. THAT IS , THA T , YOU KNO W , H EY , WAIT A M IN UT E . DO WE HAV E S OM EBOD Y T HA T I S PUTTING ON T HE R OB ES?. WE C ERTAINLY DON 'T PICK LAWYERS OUT FROM TIME TO TIME THA T C OM E TO S IT O N THE BENCH WHILE THEY ARE - - T HEY'RE MAIN PURPOSE IS THE PRACTICE OF LAW. CAN YOU J UST GIVE U S S OM E GENERAL OBSERVATIONS OF HOW SERIOUS A CONCERN Y OU BELIEVE T HAT I S W IT H SEN IOR J UDGES ?

A EARANCE I S A LWAY S A CONCERN, MAINTAINING P UB LIC TRUST IN THE JUDICIARY A ND MEDIATION PROCESS IS ALWAYS A CONCERN . I BELIEVE T HE TCB C D ETERMINED THA T M ED IA TI ON I S A CORE FUNCTION OF THE COURTS AND WHETHER IT IS COURT A NN EX ED O R N OT I T HINK THERE IS A GENERAL PERCEPTION OUT THERE T HA T IT HAS SOME COURT S AN CT ION E VEN WHEN THE PARTIES ARE CHOOS ING NOT CER TIFIED MEDIATORS, WHICH JUST I SN'T THE CASE. SO A EARA NCES A RE T HE RE , BUT I T SEEMS T O M E THA T I F HISTORY TELLS US W E'VE N OT HAD A S INGLE PUB LI SHED C AS E IN WHICH THERE HAS BEEN A PROBLEM WITH THE SEN IO R JUDGE ACTING AS A M ED IATO R OR VICE V ERSA , T HA T THE A CTUAL COMPL AINT S , T HE RE AREN'T ANY . S O HIS TORY TEL LS U S --

JUDGE, DON'T YOU T HI NK THAT'S QUITE A STRETCH? WE DON'T HAVE A PLACE TO G O FOR F OLKS TO SAY , BOY , T HA T L OOKS BAD. THAT J UST D OESN'T S EEM RIGHT. WE MAY HAVE I T I F S OMEBOD Y IS BEING BRI BE D O R SO ME TH ING LIKE THAT BUT THE OVERALL AEARANCE DO WE REA LLY HAVE A PLACE WHERE YOU C OU LD G O TO FIND I S SOM EB OD Y CONCERNED WITH HIS AEARANCE? BECAUSE I'M L OOKING AT YOU R COMMENTS AND R ES PE CT FULL Y THE COMMENTS SAY THAT EVEN THE PEOPLE WHO ARE DOING IT ARE C ONCERNED ABOUT T HE AEARANCE. SO DO WE HAVE A P LACE W HE RE WE CAN G O A ND FIN D A CAS E WHERE SOMEBODY HAS COMPLAINED ABOUT AEARANCE?

CERTAINLY , A ND I UNDERSTAND WHAT YOU ARE SAYING. CERTAINLY THE RULES FOR CERTIFYING COURT AOINT ED MEDIATORS HAVE A COD E O F PROFESSIONAL CONDUCT ANDEITHER IT IS GOING TO FIT WITHIN THOSE RULES OR IT IS NOT. AEARANCES ARE TOUGH . IT I S S OMET HI NG T HAT YOU A RE TRYING TO P RO TECT A ND IT MAY NOT NEC ESSARILY BE A R UL E VIOLATION. I FREELY A DM IT THA T . BUT T HE L AC K O F ACT UA L COMPLAINTS, THE S UCCE SS O F C ERTI FICATION WITH TRAINING , WITH MENTORSHIP , W ITH CONTINUING MEDIATOR EDUCATION REQ UIREMENTS I N CONJUNCTION WIT H T HE N OTIFICATION REQUIRE ME NTS , IN CONJUNCTION WIT H A JUDICIAL EDUCA TION P ROGRAM SHOULD TUNE I N THE SEN IO R J UDGES TO THE I SSUE S , AEARANCE ISS UE S THA T RESULT FROM DUAL SERVICE.

JUSTICE C AN TERO ?

THE 3 1 S TA TES T HA T Y OU M ENTIONED THAT ALLOW SEN IO R JUDGE S TO MEDIATE , ARE T HERE ANY S TATIST IC S ABOUT W HETHER OR HO W MANY OF THOSE S TA TE S LIMIT THE TYPES O F CAS ES THAT SENIOR JUDGES CAN EITHER MEDIATE O R S IT O N AS JUDGES ?

I C AN'T A NSWE R THA T QUESTION. I DO NOT KNOW.

I'LL GIVE YOU ONE O TH ER , AND I KNOW THAT YOUR T IME I S UP, B UT S OM ET HI NG T HA T OCCURS TO ME AS YOU MENTIONED ABOUT H OW MEDIATION IS A COR E F UN CTION AND MAYBE THIS IS SOMETHING THAT OUR TRI AL C OURT B UDGE T COMMISSION NEEDS TO LOOK AT. SOME OF THE STATES, I K NO W , THAT ALLOW B OT H S ENIO R JUDGES TO S ERVE AS M ED IATO R S F ULLY - - ACT UA LL Y HAV E S OM E TYPE OF COMPE NSATION S YS TEM WHERE THEY ARE C OMPENS AT IN G THOSE J UDGES AND T HERE FORE THE TWO F UNCT IO NS A RE T HE Y ARE ACTUALLY ALLOWIN G T HEM TO M EDIATE BUT T HE Y AR E NOT BEING PAID BY THE PRIVATE PARTIES. HAS ANY ONE L OO KED A T W HETH ER THAT WOULD BE ANO THER W AY T O A ROACH THIS? BEC AUSE WE HAVE SUCH A N EE D FOR MED IA TO RS , A ND M ED IATO R S A ND ALS O HAS T HA T B EE N L OOKED AT?

WELL, I GUE SS I D ON 'T THINK IT HAS. THE ONLY COMMENT THAT I WOULD MAKE ABOUT THAT AND ONE OF THE D OCUM EN TS F IL ED IN O OS IT IO N S UGGE STS THAT THE COURT SHOULD TAKE OVER THE PAYMENT F UNCTION. THAT I THINK WOULD REQUIRE A STATUTORY AMENDMENT.THERE IS N O A UTHO RI TY CURRENTLY FOR COURTS TO P AY FOR MEDIATION .

OK AY. THANK YOU VERY MUCH. JUDGE M CNEA L?

I'M RAY M CN EA L , A C IR CUIT JUDGE A ND I'M HERE O N B EHALF OF THE FAMILY LAW R UL ES COMMITTEE.

YOUR OBJECTI ON O R C OM ME NT DOESN'T GO TO THE ISSUES THAT WE HAVE BEE N D ISCU SS IN G THIS MORNING?

WELL, IT D OE S - - A ND ACTUALLY IT DOES N OT. THE R ULES C OMMI TTEE VOT ED T O OOSE THE C ER TI FICATI ON REQUIREMENT, AND WE F RANK LY DIDN'T REALLY G ET I NTO A LONG DISCUSSION O VE R W HETH ER SENIOR JUDGES SHOULD BE MEDIATORS AT ALL. AND I R EA LIZE T HA T T HE IDE A THAT THIS COURT C AN P RO HI BI T THEM FROM DOING THAT IS A POSSIBILITY AND IF YOU BELIEVE THAT THE P UBLI C TRUST AND C ON FIDE NC E AND T HE I NTEGRITY OF THE JUD IC IA RY REQUIRES THAT , I W OU LDN' T OOSE YOU DOING T HA T . BEC AUSE I T HI NK THA T I S Y OU R CALL. THE BOSS HAS A RIGHT T O SET THE STANDARDS FOR THE EMPLOYEES, BUT I THINK THAT YOU NEED T O B E REA LISTIC A BOUT HOW M OST SEN IOR J UDGE S WORK. THEY HEAR A CASE HERE , THE Y HEAR A CASE THERE. THEY ARE CAL LE D I N F OR - - T O CLEAN UP A MESS O R T O H EA R A TWO-WEEK TRIAL T HA T SOME BODY ELSE CAN'T HEAR. THAT'S THE WAY MOST OF THEM WORK. I KNOW THERE ARE SOM E T HA T WORK MORE H OURS AND THE MEDIATION IS THEIR PRIMA RY BUSINESS . FOR SOME OF THEM. NOT ALL OF THEM. AND SO I F Y OU S AY THA T SENIOR JUD GES C AN NOT BE A MEDIATOR THEN YOU ARE LIMITING THAT PERSON TO REALLY AN ACT OF P UB LI C SERVICE, BECAUSE MOST OF THEM CAN M AK E MOR E D OING A HOUR OF M EDIA TI ON THAN T HEY CAN A DAY O F S ENIO R JUD GING .

J US T A PHI LO SO PHIC AL ISSUE ON THAT , WOULDN'T IT BE T O S AY LET T HA T J UD GE B E AT A LAW FIRM A ND D O TRANSACTIONAL WORK THAT D OESN'T HAVE ANYTHING TO DO WITH T HE C OU RT A ND T HE Y C OULD T HEN BE A S ENIO R JUDGE? NEFERDZ IN OTHER WORDS, I T SEEMS THAT WE H AV E SAID MEDIATION IS MOS T C ON SI STEN T WITH BEING A SENIOR JUDGE , BUT, IN FACT , T HE Y B OT H BECAUSE OF THE SAME PAR TIES ARE I NVOL VED WITHOUT A GEOGRAPHICAL LIMITATION , SO I MEAN IT IS JUST S ORT O F A QUESTION ABOUT THE FACT THAT THERE IS OTHER WAY S I N TER MS OF PRA CT ICING LAW T HAT WOULDN'T EVEN BRING U P ANY OF T HI S A EA RANC E B UT W E HAVE MADE THAT DECISION THA T THAT'S THE BAN T HAT A SENIO R J UDGE CANNOT PRACTICE LAW . BUT WE COULD SAY T HE S AME THING IN THAT SITUATI ON W HY NOT BE A BL E T O C AL L I N T HA T GOOD, YOU KNO W , SENIO R JUDGE , F ORMER S EN IO R J UD GE LAW YE R? SO LET'S GET TO THE CERTIFICATION ISSUE, AND WHY YOU THINK T HAT' S NOT A G OO D THING FOR IN THE F AM IL Y CONTEXT?

WELL, LET M E SAY F IR ST . I BELIEVE INSERT IF I INDICATION. I'VE TAKEN THE MEDIATI ON TRAINING AND I WANT T O BE A CERTIFIED MEDIATOR AND I THINK MEDIATION CERTIFICATION S ELLS ITS ELF WITHOUT YOU H AVING TO IMPOSE IT ON ONE CLASS O F MED IATO R. IT S ELLS ITS EL F B ECAUSE Y OU GET J UDICIAL IMMUN ITY I F Y OU ARE A CER TIFIED MED IA TO R. IT ALLOWS YOU T O D O F RE E FILING MED IA TION , AND G ET JUDICIAL IMMUNIT Y . SO T HE J UDGE S O R S EN IO R J UDGES WHO ARE DOI NG M EDIATION ARE S UBJE CT T O T HE RULE THAT A DR R ULES IF THE Y ARE D OING COU RT O RDER ED MEDIATION, IF THEY ARE DOING IT UNDER THE RULES OR I F THEY ARE C ERTIFI ED , AND THE REASON, THE R UL ES C OMMI TTEE OOSED IT AND THE C IV IL RULES COMMITTEE VOT ED OVERWHELMINGLY TO OOSE I T AS WELL. I THINK IS TO A LL OW THE PARTIES A NO TH ER O ORTU NI TY TO CHOOSE SOMEBODY THEY HAV E CONFIDENCE IN. OBVIOUSLY IF THE COURT IS GOING TO ORDER M ED IATION A ND SAY YOU W ILL GO T O T HI S PARTICULAR SENIOR JUDGE TO HAVE YOUR M ED IA TION , THAT J UDGE IS SUB JE CT T O THE MEDIATION RULES , AND T HE STA NDARDS.

I GUESS I WANT TO GO B AC K TO THIS AEARA NCE THING. ISN'T THERE A SUBTLE AND I KNOW YOU ARE IN THE 5TH CIRCUIT AND I'M THINKING OF SOUTH FLORIDA, A S UB TL E THING THAT, YOU KNOW, THE RE IS THAT S EN IOR JUDGE THERE T HAT IS GOING TO B E H EA RI NG YOUR CAS E AND M AY H EA R Y OU R C ASE AND T HA T JUS T I N A G ENERAL WAY THAT THAT I S GOING TO ENHANCE THA T PERSON'S M EDIATI ON B USIN ES S? > > H ON ES TL Y , JUS TI CE , I DON'T THINK BEING A S ENIO R JUDGE WOULD DO IT , BUT BEI NG A R ET IR ED J UDGE DOES. I THINK IT IS JUST THE F ACT THAT YOU WERE A JUD GE AND WHEN YOU HAVE SOMEONE THAT'S BEEN ON THE BENCH F OR 3 0 YEARS AND THEY R ETIR E , A ND THEY WANT T O MEDIA TE , PEO PL E SEEK THEM OUT F OR T HE IR MEDIATION SKILL S N OT B EC AUSE OF WHAT T HEY DID ON T HE BENCH, BUT BEC AU SE T HEY H AVE A BROAD RANGE O F E XP ER IENCE.

IN T HE CERTI FI CA TION COURSE YOU TOOK I ASSUME THERE WAS A SUB ST AN TI AL EMPHASIS ON T HE NEW TRA LT O F - - N EUTR ALIT Y O F MED IA TORS ?

ABSOLUTELY.

AND T HA T T HE M ED IA TO R W AS NOT THERE TO BE A JUDGE A ND MAKE A DECISION FOR THESE PARTIES?

A BS OLUT ELY . I BELIEVE IN THE TRA IN IN G AND I REALLY DON 'T B EL IEVE ANYBODY WOULD GO OUT AND TRY TO ATTEMPT MED IATION W ITHO UT TAKING TRAINING. THERE MAY BE SOMEBODY THAT WOULD DO IT, BUT I THINK ALL OF OUR JUDGES ARE S MARTER THAN THAT . YES, THE ROLE OF A M EDIA TO R IS NOT JUD GI NG .

HOW MANY R ETIR ED JUD GE S ARE SER VI NG A S MED IATO RS I N THE 5TH C IR CUIT? DO YOU HAVE ANY IDE A ?

I B ELIE VE T HREE .

O KA Y . > > I B EL IE VE T HERE ARE T HR EE . THERE M AY O NL Y B E T WO . > > I NC LU DING JUD GE D ANIE LS ?

I WAS I NCLU DING JUD GE DANIELS , J UD GE A LL S A ND J UDGE S LAGG AR D NOW .

ARE THEY ALL C ER TIFIED?

AS FAR AS I KNOW T HEY ARE.I WANT TO BE C ER TIFIED.

IF WE ARE C ON CERN ED A BOUT T HE QUALITY O F MED IA TI ON AS SORT OF A SEPAR ATE I SSUE , SHOULDN'T THIS BE A VERY SIMPLE QUESTION AND THAT I S THAT I T HI NK E VE RYBO DY HAS LONG CONCEDE D T HA T T HE S KILLS NEC ES SARY TO B E A JUDGE ARE NOT N EC ES SA RILY THE SAME SKI LL S THA T Y OU NEED IN O RDER T O BE A MEDIATOR, AND, IN F AC T , I N MANY INSTANCES T HE RE MAY B E H ABITS DEVELOPED OR WHA TEVER IN TERMS OF H AVIN G T O MAK E D ECISIONS FOR T HE P AR TIES , AND THE A UT HO RI TY OVER THE PROCEEDINGS THAT ACTUALLY ARE INC ON SISTEN T WIT H T HE WAY MEDIATI ON SHOULD B E HANDLED? S O REALLY SHOULDN'T THIS BE A VERY S IM PL E QUE STIO N? THAT IS, I F WE A RE CONCERNED ABOUT THE QUALI TY O F MEDIATION , THA T T HERE S HOUL D BE A R UL E O F CER TIFI CA TION ? > > WELL, I D ON 'T --

FOR EVERYBODY?

FOR EVE RY BODY . W ELL, I JUS T W ENT TO A COURSE ON T HAT W HERE THAT WAS THE PRIMARY T OP IC . DO WE CERTIFY O R D O W E N OT CERTIFY? FRANKLY THERE IS N O E VI DE NC E ANYWHERE THAT GETTING CERTIFICATION MAKES YOU A GOOD MEDIATOR. THAT'S JUST T HE WAY A DU LT EDUCATION W ORKS. THE PEOPLE WHO WANT T HE E DUCATION AND THE PEOPLE THAT WANT TO DO A G OO D J OB WILL DO A GOOD JOB .

WH AT IS THE S TA TU S NOW WITH -- FOR FAM IL Y LAW MATTERS? IS THE RE - - I F Y OU REF ER A S A J UD GE F OR MED IATI ON , D O THE Y HAVE TO B E A S UPRE ME C OURT CER TI FIED MED IA TORS ?

UNLESS THE P EO PL E C HOOS E SOMEONE THEY WANT. IF I PIC K S OMEONE AND SEN D THEM, THEY HAVE TO BE CERTIFIED, BUT IF THE Y CAN PICK THEIR NEXT DOO R NEIGHBOR TO DO IT.

THEY DON'T HAVE TO BE A LAWYER OR ANYBODY?

NO, SIR. IT CAN BE ANYBODY.

SO NOW WHA T WE WOU LD BE SAYING IN THE F AMILY LAW CONTEXT THAT THEY C OULD PIC K ANYBO DY THAT'S NOT CER TI FIED , OTHER THA N A JUD GE WHO W OULD HAVE TO BE CERTIFIED?

YES, SIR. -- I'M S OR RY , YE S, MA'AM .

IS THAT THE CASE , B ECAUSE THAT'S A F AMIL Y M ATTE RS , BECAUSE IN CIVIL THEY HAV E TO BE ATTORNEYS , RIG HT ? IS IT J US T FA MI LY T HA T'S --

I REALLY H AVE T O PLE AD IGNORANCE ON THAT .

AND W HE N W E ARE T ALKING ABOUT FAMILY, TOO, YOU HAVE TO REMEMBER THAT IN FAM IL Y LAW, WE'VE G OT 7 0% O F T HE PEOPLE THAT ARE COMIN G IN FRONT OF US WHO ARE REPRESENTING THEMSELVE S , AND W HAT WE DO IN THE C OURTRO OM IS MORE A KIN TO M ED IATI ON THAN IT I S A DJ UDIC ATIO N. OBV IOUSLY WE HAVE THE F IN AL SAY AND WE C AN S AY I 'V E HEARD ENOUGH. THIS IS THE WAY IT IS GOING TO BE BUT A LOT OF W HA T W E DO AND I DO IT , I M EAN , A LL DAY LONG SOMETIMES I S SAY , WILL THIS WORK FOR YOU OR WHAT ARE YOUR OPTIO NS ? LET'S WOR K O N SOM E W AY S T HA T WE CAN S OLVE THI S PROBLEM.

JUDGE M CNEAL, W HA T WOU LD BE, THOUGH , I N T ER MS O F T HE C URRENT COMMENTARY THAT SAYS IF YOUR THREE JUDGE S WHO ARE MEDIATING, THEY COULD S ERVE IN THE 5TH CIRCU IT , B UT I F THEY WERE MED IA TING CIV IL CASES, WHICH I S W HE RE T HE BIG BUCKS ARE, S O T O S PEAK , T HEY WOULD B E , Y OU K NOW , THEY COULD BE ASS IGNED TO DEPENDENCY, THEY COULD BE ASSIGNED TO JUVENILE , THEY COULD BE ASSIGNED T O CRIMINAL BUT THEY WOULDN'T BE ASSIGNED TO T HE CIV IL DIVISION, AND THA T' S H OW IT HAS WORKED S O FAR AND N O O NE HAS REALLY SUG GE STED T HA T THAT'S BEEN A HAR DS HI P F OR ANYBODY. SO DO YOU SEE A NY - -

I DON'T SEE ANY P ROBL EM WITH THAT A ND PERSONALLY I THINK THAT IS J US T G OO D PRACTICE.  THOSE OF US WHO HAVE BEEN JUDGES FOR A LONG T IME H AV E DEALT WITH THIS WHOLE IDE A O F CONFLICT OF INT ER ES T A ND AEARANCE OF I MP RO PR IE TY . WE DEAL W ITH IT EVERY D AY , AND I CERTAINLY DON'T WAN T TO DO ANYTHIN G IN R ET IREM EN T THAT WOU LD C RE AT E ANY PROBLEMS AT ALL. SO I B EL IE VE T HAT PEO PLE SHOULD BE CAREFUL, AND I BELIEVE THAT OUR J UDGE S WILL BE CAREFUL . I T HINK THAT WE H AVE A G REAT JUDICIARY AND WE HAVE GREAT TRAINING, A ND I HAVE A L OT OF CONFIDENCE.

HOW ABOUT GIVIN G US T HE BENEFIT SORT OF OF YOU R VIEWS ABOUT T HI S G ENER AL ISSUE, AND THAT I S T HE QUESTION THAT I HAV E P OSED T O JUDGE B RIESE AND T HAT I S A L IN GE R IN G C ONCE RN THAT WE HAVE A ND A LOT O F I T I S N OT WITH SENIOR JUDGES, I T I S WITH RETIRED JUD GE S , B UT THAT W E C RI NGE S OM EWHA T W HE N WE SEE E LABO RATE ADVERTISEMENTS, OKAY , A ND I N THE A D T HE Y CLA IM T HAT , Y OU KNOW, H ERE'S OUR F IRST T EA M , YOU KNOW, A ND I T I S J UDGE THIS AND JUDGE T HA T AND JUDGE THAT O R W HA TEVE R , A ND THAT'S PART OF THE B USINES S AD. IN OTHER WORDS, THA T'S PARTOF AN A D THA T I S S EE KING B USINESS , A ND SO I T G IVES R ISE TO T HI S CON CE RN THE N , A S I SAID , W IT H SEN IO R JUDGES IF THE Y A RE DON NING A HAT OF A B US IN ES SM AN ONE DAY OVER HERE A ND DOI NG THA T , AND THEN THE NEXT D AY THE Y GO OVER AND T HE Y P UT O N THE ROB E. CAN YOU JUS T GIVE U S T HE BENEFIT OF Y OU R GEN ER AL OBSERVATIONS ABOUT T HAT I N T ERMS O F W HA T W E C AN D O , PERHAPS , T O DIS CO URAG E THA T OR TO A T LEA ST PUT U P A S MANY PROTE CT IVE D EV ICES A S WE CAN T O D ISCO UR AG E T HA T KIND OF T HING ?

SO WHAT YOU ARE A SKING M E IS TO TELL YOU WHA T YOU CAN DO TO D ISCO URAG E SENIO R JUDGES FROM SER VING AS MEDIATORS?

I'M ASKING Y OU I N T ERMS OF THI S A EA RA NCE T HA T I'M A BUSINESSMAN ONE D AY , O KA Y , AND I CAN D O ALL O F T HE A DS THAT I WANT AND I C AN , A S I S AID, I N M AN Y I NSTA NCES IT IS NOT A JUDGE THA T SERVE S ON THE S ENIOR S TATU S , I T IS A JUDGE T HA T S IMPL Y T HA T' S - - THAT IS PART O F T HE PACKAGE, YOU KNOW , A ND T HE N I T'S T HE A EARA NC E AND T HE DIS COM FORT C OM ES NOT WITH THE FACT, YEAH , T HA T' S P AR T OF THE CRE DENT IA LS FOR Y OU TO GO BACK AND WORK FOR A LAW FIRM O R T O GO WITH A MEDIATION FIR M , THE D IS TRES S COMES WHEN THE Y A RE P UT OUT THE RE THEN AS J UD GE S.

I UND ERST AN D . I REA LLY HAVEN 'T T HOUGHT ABOUT THAT A WHOLE L OT . I HAD T HOUGHT ABOUT ADVERTISINGING A LOT, A ND I THINK T HAT W E'VE D ONE OURSELVES A DIS SERV IC E B Y PERMITTING A LOT OF THE ADVERTISING THAT WE HAVE . SO I DON'T KNOW HOW I C AN ADD RESS THAT, BECAUSE I REALLY, I D ON 'T F EE L COMPETENT TO ADDRESS IT , AND I D O HAVE A B IA S AGA INST ADV ERTISING ALL T OGETHER.

THAT'S W HAT'S HAENED , OF COURSE, IS T HA T M AR KETI NG , AS IT W IL L , I S P AR T O F B OT H T HE LAW BUSINESS OR A NY BUSINESS AND NOW, OF COURSE , WE SEE THAT THE MAR KE TING HAS B EEN E XTEN DE D EXTEN SIVELY TO THE MED IA TI ON BUSINESS.

I DIDN'T EVEN K NO W Y OU COULD USE JUDGE IN T HA T K IND OF ADVERTISING SO THAT SHOWS HOW IGNORANT I AM.

I KNOW YOU C AME UP HER E TO BE A REP RE SENT AT IVE OF THE FAMILY LAW R ULES COMMITTEE, SO W E A RE CI AT E YOUR RESPONDING TO THESE OTHER Q UESTIONS, BUT I T HINK YOU'VE MADE YOUR POINT THAT YOU THINK THAT T HAT SH OU LD NOT BE MANDA TO RY REQ UI RE MENT FOR THE S EN IO R J UDGE S W HO ARE SIT TING AS MEDIA TORS AND WE ARE CIATE Y OUR B EING HERE.

THANK YOU, AND I WANT T O THANK JUD GE BRIESE A ND THE WORK OF T HEIR COMMITTEE. I HAVE A LOT OF G RE AT FRIENDS ON THAT C OMMITTEE AND THEY'VE DONE W ONDE RFUL WORK AND I KNOW YOU HAVE MORE PETITIONS COMING UP FROM THEM.

AND WE THANK Y OU , J UDGE M CNEAL AND T HI S W EE K T HE RE HAVE BEEN C ER TAIN P EO PL E I HAVE ACKNO WL EDGE D P UB LICL Y , AND YOU ARE ONE OF THE JUDGES THA T THR OUGH O UR KNO WLEDGE ALWAYS STEPS U P TO THE PLA TE T O D O M OR E A ND T O L OOK AT THE G REAT ER GOO D A ND SO O N B EH AL F O F T HE COURT , WE WANT TO THANK YOU F OR BEING HERE A ND F OR YOU R NEVER-ENDING C ONCE RN A BOUT THE BEST INT ERESTS OF THE JUS TICE SYSTEM. THANK YOU . JUDGE BRIESE?

THANK YOU. I JUST W ANT T O M AK E CER TA IN -- CERTAIN POINTS I N REBUTTAL. AS I SAID , T HE C URRENT PRACTICE, CURRENT PRE CE DENT IN THE STATE OF FLORIDA IS THAT SENIOR JUDGES CAN ACT AS MEDIATO R S . AS LONG AS C ER TAIN CONDITIONS ARE MET. IF THIS COURT IS G OI NG T O TAKE A CHA NG E A ND P RO HIBI T SENIOR JUDGES FROM M EDIA TING ALL TOGETHER, I WOULD P OI NT OUT THAT JUSTICE W ELLS A ND JUSTICE A NSTEAD A RE T HE T WO MEMBERS OF THIS COU RT THAT SERVED IN THE 1 99 4 D ECIS IO N THAT AROVE D T HE C UR RENTCODE OF JUDICIAL CONDUCT WHICH D OE S A LLOW S ENIO R JUDGES TO MEDIATE.

I THOUGHT YOU WERE GOING TO POINT OUT THAT THEY ARE THE CLOSEST TO RETIREMEN T .

NO. SECONDLY, WITH REG AR D T O GEOGRAPHICAL LIMITATIONS , THAT IS A D OA BL E , I G UESS IS D OABLE , B UT T ODAY M EDIA TI ON PRACTICES IN FLO RIDA A RE MORE S TATEWIDE THAN COUNTY OR C IRCU IT AND S EN IO R JUD GE SERVICE IS ALSO MORE STATEWIDE THAN CIRCUIT , AND A S T HE C OURT W EL L KNO WS , THE SENIOR JUDGES SER VE UNDER THE AUTHORITY OF THE CHIEF JUSTICE AND N OT UND ER T HE AUTHORITY OF THE C HI EF JUDGES OF A PAR TI CU LA R CIRCUITS . THERE WAS ALSO A QUEST IO N ABOUT J UDICIAL IMMUNITY. I