Can a Michigan judge act as a conciliator in church disputes that might end up in arbitration or litigation?

Plain-English summary

A judge who was also an ordained permanent deacon asked whether the judge could serve as a "conciliator" in church-related disputes for a Catholic Diocese, for example over the termination of a church employee. In that process, before any legal action, an aggrieved employee could ask a conciliator to lead the disputants through exploration and discussion that might produce settlement short of arbitration or litigation; the process was confidential, the notes destroyed, and the communications treated as privileged to clergy. The opinion applied MCJC 5E, which bars a judge from acting as an arbitrator or mediator except in the performance of judicial duties.

The opinion reasoned that conciliation is not arbitration, and differs from mediation only procedurally, not substantively: a conciliator convenes intended litigants to reconcile their differences, while a mediator intervenes in a dispute already under way. It concluded there is no meaningful distinction in the fact that MCJC 5E names mediation but not conciliation, because the two processes aimed at reconciliation are so closely connected that reason requires the rule to reach both.

The opinion concluded that MCJC 5E contemplates parties engaged in or about to become engaged in a litigious dispute, and bars judges from involvement outside their formal duties. It expressed concern that the disputed matter could later come before the conciliator-judge's court or another forum, where the judge's conciliation role or the prestige of judicial office could be drawn into the controversy, which might be viewed as exploitative of the court's prestige and influence (MCJC 2A, 2C). It therefore concluded a judge should not provide conciliation services in disputes that are likely subjects of arbitration or litigation.

Currency note

This opinion was issued in 1993, before Michigan's 2002 adoption of the Ethics 2000 revisions to its Rules of Professional Conduct, and it interprets the Michigan Code of Judicial Conduct as it then stood. The Code of Judicial Conduct has been amended since. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a Michigan judge act as a conciliator outside the courtroom?

A: The opinion concluded a judge should not serve as a conciliator in disputes likely to be arbitrated or litigated, because the bar on acting as a mediator or arbitrator extends to conciliation.

Q: Does it matter that the Code names mediation but not conciliation?

A: No. The opinion concluded the two processes are so closely connected that MCJC 5E must apply to both.

Q: Why is conciliation a concern even when it is confidential?

A: The opinion reasoned the disputed matter could later reach the judge's court or another forum, drawing the judge's role or the prestige of office into the controversy, which could be exploitative of the court's prestige.

Background and rules framework

The opinion interpreted MCJC 5E (a judge should not act as an arbitrator or mediator except in judicial duties), together with MCJC 2A and 2C on impropriety and use of the prestige of office, of the Michigan Code of Judicial Conduct.

Citations and references

Code of Judicial Conduct (as cited):

• MCJC 5E (a judge should not act as an arbitrator or mediator except in judicial duties)
• MCJC 2A, 2C (avoiding impropriety; not lending the prestige of office)

See also

• Mich Judicial Ethics Op. JI-28: a retired judge serving as mediator or arbitrator
• Mich Judicial Ethics Op. JI-3: door-to-door charitable solicitation by a judge

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=778&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JI-69

June 21, 1993

SYLLABUS

A judge should not provide services as a conciliator in disputes that are likely subjects of arbitration or litigation.

References: MCJC 2A, 2C, 5E.

TEXT

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, Michie Company, 1990, p. 197. A judge should not provide services as a conciliator in disputes that are likely subjects of arbitration or litigation.