23.07. Ensure that all parties have a right to be heard

A judge must give every person who is properly before the court a right to be heard as required by law. One area where judges can potentially undermine a party’s right to be heard is the settlement context.  A judge who acts in a manner that makes parties feel like they are being coerced into settlement can undermine the right to be heard.  Therefore, while a judge can “encourage” settlement – the judge should not coerce settlement.[1]

When a judge does engage in settlement negotiations, it can impact the judge’s perception of the parties.  For example, the judge may influence the judge’s perception of the case or create a bias toward/against a party based on what is learned in the course of settlement if it is not successful.  These interactions could compromise a judge’s impartiality (or at the very least the appearance of impartiality) and require disqualification.  A judge should carefully consider whether to participate in settlement negotiations at all, and take into account:  (i) whether the parties have requested/consented to judicial involvement; (ii) whether the parties/counsel are sophisticated; (iii) whether the case will be tried to a judge or jury if the settlement is unsuccessful; (iv) whether the parties participate with counsel in the settlement negotiations; (v) whether there are any unrepresented parties participating; and (vi) whether the matter is civil or criminal.[2]

[1] ABA Code of Judicial Conduct, Canon 2, Rule 2.6(B).

[2] ABA Code of Judicial Conduct, Canon 2, Rule 2.6, Comment [2].