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What Is the Role of a Private Judge in a Divorce or Mediation?

What Is the Role of a Private Judge in a Divorce or Mediation?
Law & Mediation Firm of Klueck & Hoppes, APC

In the last half of the 20th century, California’s courts became overwhelmed with cases. Judicial dockets were backlogged with hearings and proceedings, which substantially slowed down the court’s ability to dispense civil justice. Furthermore, budgetary cuts exacerbated the problem by reducing the resources of the courts.

In response to this phenomenon, a greater emphasis was placed on alternative dispute resolution methods like mediation and arbitration. Additionally, the California Constitution was amended to recognize the use of a temporary judge who was a member of the State Bar of California and presided over cases for the court. Under Article VI § 21 of the California Constitution, as amended in 1966, “on stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.”

The recognition of private judges helped deal with the courts’ backlog problem by essentially increasing its maximum manpower and by allowing the parties to resolve their issues expeditiously.

What Is a Private Judge?

A private judge—also known as a “judge pro tempore”—is a legal professional whom the parties to a dispute hire to preside over their case. Typically, private judges are attorneys or retired judges with experience in a specific practice of law over which public judges usually preside.

However, temporary private judges are available to litigants for a premium. Like mediators and arbitrators, the parties pay a premium for the services of a private judge. The fees of a temporary judge indicate how valuable circumventing the backlogged courts is to people.

Unlike mediators and arbitrators, private judges can be an extension of the court’s legal authority. Thus, the California Code of Judicial Ethics applies to temporary judges as it would to an official public judge.

California Rules of Court 2.830-2.835 govern the use and operation of temporary judges and allow the parties in a family law proceeding to use them.

Private Judges for Formal Legal Proceedings

Unlike the neutral fact-finders of other alternative dispute resolution methods, private judges have the authority to render binding legal orders and judgments, if the parties wish. Although court proceedings do not necessarily take place in a courtroom—as the parties can choose to hold proceedings from the privacy of their own home or the conference room of a law firm—the proceedings over which a private judge can preside are considered to be formal judicial proceedings.

Under Rule 2.834 of California’s Rules of Court, “all proceedings before a temporary judge requested by the parties that would be open to the public if held before a judge must be open to the public, regardless of whether they are held in or outside a court facility.”

Because private judges sit in place of a public judge, the formal rules of evidence, court, and civil procedure still apply to the case, and the private judge is bound to faithfully interpret and apply those rules as any other judge would.

In this respect, a private judge differs from arbitrators—who may or may not have the power to render a legally binding final judgment, depending on the terms of the arbitration agreement. Unlike judges and temporary judges, arbitrators are not necessarily bound to the rules of evidence, nor are they required to follow legal precedent.

Because the temporary judge essentially inhabits the role of a formal judge, temporary judges are obligated to adhere to the Canons of Judicial Ethics. Under Rule 1-710 of the California Rules of Professional Conduct, “A member who is serving as a temporary judge, referee, or court-appointed arbitrator, and is subject under the Code of Judicial Ethics to Canon 6D, shall comply with the terms of that canon.” Failure to do so can result in overturned orders and rulings, as well as more significant consequences in particularly egregious cases.

However, since many temporary judges may be attorneys who still maintain their own private practice, unique ethical issues can potentially arise that would otherwise would not in situations involving a traditional dedicated judge who has been completely removed from private practice.

Private Judges for Mediation

In family law cases like divorces, temporary judges can occupy a less formal role that is more like that of a mediator. In this capacity, a temporary judge can guide the parties through informal settlement negotiations to help them reach a private resolution to certain issues.

This is particularly helpful in cases where the primary dispute in a divorce is for a specific issue, such a property division or alimony. If the parties are less concerned and more amenable to cooperate on other issues, a temporary judge can act as a mediator so they can knock out the less pressing issues of their case.

By acting as a mediator during informal negotiations, temporary judges increase their familiarity with the case, which can better inform their judgment during more formal proceedings.

Contact the Law & Mediation Firm of Klueck & Hoppes, APC

If you have questions about whether an alternative form of dispute resolution is right for you, or whether you can benefit from hiring a temporary judge for more formal court proceedings, you should consult a member of our experienced legal team at the Law & Mediation Firm of Klueck & Hoppes, APC.

Call us at (619) 577-4900 or contact us online to get started with a case evaluation today.

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