June 21, 1993
A judge should not provide services as a conciliator in disputes that are likely subjects of arbitration or litigation.
References: MCJC 2A, 2C, 5E.
A judge asks about the propriety of serving as a "conciliator" in church related disputes for a Catholic Diocese. Termination of a church employee is a typical situation. Prior to filing any legal action, an aggrieved employee may request a "conciliator" to engage the disputants in a process of exploration and discussion that may result in accord and settlement short of arbitration or litigation. The conciliation process is pronounced as confidential and notes relating to it are destroyed. The matter is deemed to be a privileged communication to clergy and generally not subject to civil process. The judge is an ordained permanent deacon.
MCJC 5E states:
"E. Arbitration: A judge should not act as an arbitrator or mediator, except in the performance of his judicial duties."
If the situation had to do with either mediation or arbitration, the plain works of MCJC 5E would bar the activity. But there the process involved is a form of conciliation rather than arbitration or mediation.
Conciliation is obviously not arbitration, but the difference in it from mediation is procedural, not substantive. A conciliator convenes intended litigants and endeavors to reconcile their differences. Black's Law Dictionary 4th Ed., p. 361. A mediator intervenes in a dispute already under way in an effort to bring reconciliation. Black's Law Dictionary 4th Ed., p. 118.
There seems to be no meaningful distinction to be made of the fact that MCJC 5E omits the specific use of the term conciliation, but does use the term mediation. These terms and the processes under them aimed at a reconciliation are so clearly connected that reason requires that MCJC 5E be applied to both of them.
MCJC 5E contemplates parties engaged in a litigious dispute or about to become so engaged, and bars judges from becoming involved in the process outside of the judge's formal duties. There must be concern that the disputed matter may come before the judge's court or in another judicial forum where the actions of the "conciliator judge" are drawn into the controversy or the prestige of the judicial officer is asserted to support or enhance the propriety of a proposed reconciliation.
Either circumstance might well be viewed as exploitative of the court's prestige and influence and therefore inappropriate. See MCJC 2A and 2C; Judicial Conduct and Ethics, Shaman, Lubet and Alfini, The Michie Company, 1990, p. 197. A judge should not provide services as a conciliator in disputes that are likely subjects of arbitration or litigation.