From the Executive Director, 1221 GABJ, GSB Vol. 27, No. 3, Pg. 14
| Author | DAMON ELMORE |
| Position | Vol. 27 3 Pg. 14 |
Prepare and Give Thanks
DAMON ELMORE
I cheated. For weeks, I wrote and rewrote this article. In the beginning, I thought about a general update of our work. It was a modified version of our report to the Board of Governors as part of the Fall Meeting in October.
That report was a reminder of how we do things better in Georgia. Key highlights included recent changes in the area of continuing legal education that are designed to make things better for our members. We are grateful to our CLE department and members of the Commission on Continuing Legal Education for their work and vote to lift the cap on distance and in-house learning going forward. I shared special thanks to my fellow YLD Past President Joe Dent in Albany, and CLE Director Dee Dee Worley for recognizing how and why this is important.
I mentioned how we had some new faces on the Bar staff since our last report. We asked the Board members then, and we ask you now, that when you see them—LaCara Reddick (South Georgia Office), Nkoyo Effiong (Law Practice Management), Rebecca Stills (Executive Office), Jada Pettus (Communications), Erica Dean (Coastal Georgia Office) and Justin Lasseter (CAP)—tell them hello! At the same time, we lost an important piece of the work we do due to the untimely passing of Betty Sims, executive director of our General Practice & Trial Law Section. Please keep her family in your thoughts. By the time you read this, we will have also said goodbye to Michelle Garner, our director of meetings. While Michelle has left the State Bar to tackle another role, she will still work to support Georgia lawyers. We recognize and appreciate her 20 years of service with the Bar.
But that did not feel adequate enough. At the end of the day, while I have added something here that is sincere and genuine, the truth is that it is an updated version of an article I penned in my role as president of the YLD in December 2005. It was good then. It is good now.
In that article, I looked back on the previous 12 months. I gave thanks as we are naturally inclined to do this time of year. I shared my thoughts on planning and preparation for the road ahead. There are, however, some major differences.
My role supporting Georgia lawyers and the work I am charged with—to focus our mission on the quality of legal services—has changed. My experiences and views have changed. The good news is that I learned from that exercise, and the process has remained meaningful. It is not something I take for granted and, as President Elizabeth L. Fite and YLD President Elissa B. Haynes have reminded in their contributions, planning and a simultaneous focus on being present are essential.
As it was 16 years ago, the calendar year had numerous twists and turns. Then, I mentioned communicating by BlackBerry (ha!). Then, Hurricane Katrina proved to be a life-altering event for many in the region, the Gulf and other parts of the world. Those events then "caused for me a serious gut check in the form of retrospect." As I read the article, it also "taught me to be more grateful for the things I have, and the importance of some old fashioned planning and preparedness."
We are ready for 2022. Until then, we wish you well. We hope you will never hesitate to let us know how we can help you and your work, and, as I closed in 2005, "take some meaningful time to spend with those who are important to you, and soak in the soul of the season so that you are indisputably full."
Today, so much is the same and different at the same time. I remain amazed at our ability to come together and bond in many areas to work through difficult times, challenges and strife. In 2020 and 2021, we learned how many Georgia lawyers planned and took action in the wake of forced change. We know many stories of good and necessary work by Georgia lawyers in communities all across the state.
The same happened within the Bar. Our staff has continually shifted and adapted to support our members and take good care of Georgia lawyers. I am grateful that in a year that saw new leadership and different voices, presented complications caused by remote or alternative work arrangements, focused on the critical need for attention to the health and well-being of our families, fellow members, friends and selves, and endured regular starts, stops and shifts that make planning nearly impossible, this team remained committed to finding solutions and making things better. I believe in them and cannot wait to share what happens next.
The immediate future will require constant tweaks with the way we work. Continued implementation of changes in technology, communication and the way we gather, are at the top of that list. We are also committed to analyzing the way we deliver our services, with a focus on efficiencies and strategic planning. No, not with SWOT analyses or mission and vision language, but with an eye on making incremental and necessary improvements to everything we do and keeping the needs of all of our members top of mind.
No matter what it may bring, we are focused on the future and grateful to all of the essential elements of our success. This work cannot happen without our Executive Committee members and all of the other Bar leaders, nor without the partnership with our liaisons at the Supreme Court of Georgia, Justices Peterson and Warren. Their additional work and insight may go unnoticed in real time, but it makes the Bar's business better.
We are ready for 2022. Until then, we wish you well. We hope you will never hesitate to let us know how we can help you and your work, and, as I closed in 2005, “take some meaningful time to spend with those who are important to you, and soak in the soul of the season so that you are indisputably full.” DEE.
The Legal
Georgia's New Mediation Law: Harmonization and Innovation
This article explains the genesis of the new Georgia Uniform Mediation Act, outlines its scope and function and discusses some important practice points for attorneys and mediators.
BY SHELBY S. GUILBERT JR., TRACY JOHNSON, STEPHEN F. MCKINNEYAND DOUGLAS H. YARN
Each year, thousands of mediations take place in Georgia.1 Some are court-ordered, many are administered privately pursuant to voluntary agreements by the parties and an increasing number involve parties in international disputes arising from business activities in Georgia. Although reliable statistics are hard to come by given the proliferation of voluntary mediations and the growth in mediations in which the parties are unrepresented, most practitioners would agree that, over the last two decades in Georgia, far more civil disputes have been resolved through mediation than jury verdicts. Given the current backlog in the courts due to the COVID-19 pandemic, and the escalating costs associated with civil litigation, this trend will likely continue in the years ahead, not only in Georgia but around the country.
In most mediations, the decisive factor in whether the mediation will prove successful is the parties' willingness to be open and candid with each other and the mediator about their underlying interests and the strengths and weaknesses of their respective claims and defenses. And the willingness to be candid depends on assurances by i¦ the parties and the mediator that what happens in mediation stays in mediation.2
Most Georgia lawyers are familiar with the assurances of confidentiality that mediators give in their introductory statements at the outset of a mediation. But does the law back up these assurances? Until recently, the answer to this question was uncertain and depended in part on whether the mediation was court-connected, and thus subject to the Alternative Dispute Resolution Rules (Georgia ADR Rules) promulgated by the Supreme Court of Georgia,[3] or whether the parties were conducting a voluntary mediation, where parties are free to express in writing (or not) their agreement to keep mediation communications confidential. This uncertainty created confusion in Georgia case law4 and has contributed to a reluctance on the part of some parties, particularly those from outside the United States who are increasingly engaged in international trade and investment activities in Georgia, to conduct mediations in this state.
The new Georgia Uniform Mediation Act (GUMA),5 which became effective on July 1, 2021, was drafted to address these issues by creating a well-defined statutory privilege for mediation communications and requiring all mediators to disclose potential conflicts of interest before a mediation, regardless of whether the mediation is court-connected or voluntary. The GUMA also contains a specific section that is designed to promote international mediation in Georgia, which will enhance Georgia's position as a leading hub for the resolution of international business disputes.[6]
This article explains the genesis of GUMA, outlines its scope and function and discusses some important practice points for attorneys and mediators.
Background and Objectives
Generally, there are three mechanisms available to help keep mediation communications confidential: (1) confidentiality agreements, (2) evidentiary exclusion and (3) evidentiary privilege. With respect to confidentiality agreements, it is common practice to include confidentiality provisions in an agreement to mediate, at least when the parties are represented by lawyers, which is not always the case. A confidentiality agreement may bind the parties with a duty to maintain secrecy and restricts what they can reveal to the public or others about the mediation. A confidentiality agreement cannot, however, bind non-signatories, and the mediator may or may not be a signatory.7 A confidentiality agreement also cannot insulate mediation communications from being introduced in court proceedings unless a court chooses to recognize and enforce...
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