Georgia's New Mediation Law: Harmonization and Innovation
| Publication year | 2021 |
| Pages | 0016 |
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. MCKINNEY AND 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 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 law[4] 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 the agreement.[8]
With respect to evidentiary exclusion, Section 408 of Georgia's evidence code makes "[e]vidence of conduct or statements made in compromise negotiations or mediation" inadmissible.[9] But Section 408 applies only to proceedings governed by Georgia's evidence code. It does not protect mediation communications from discovery, and it contains loopholes that allow mediation communications to be offered as evidence for "another purpose," such as "proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution."[10] Moreover, only parties to the litigation may invoke Section 408, which does little to protect a non-party mediator-witness who feels ethically bound not to disclose what occurred in the mediation.
"Generally, there are three mechanisms available to help keep mediation communications confidential:
(1) confidentiality agreements, (2) evidentiary exclusion and (3) evidentiary privilege. lawyers, which is not always the case.”
In contrast to confidentiality agreements and evidentiary exclusion, evidentiary privilege provides more protection from disclosure because it creates (1) a right not to disclose, and (2) a right to keep others from disclosing mediation communications, in both discovery and at trial. Prior to the GUMA, the law on the existence of an evidentiary privilege for mediation in Georgia was murky and inconsistent at best. Murky, because the Georgia ADR Rules, which regulate court-connected mediation in Georgia,[11]indirectly establish a hybrid rule of evidentiary exclusion and privilege that insulates court-connected mediation communications from discovery and protects the mediator from subpoenas. Inconsistent, because the ADR Rules do not apply to private, voluntary mediations, which are thus denied the same protections.[12] The resulting confusion came to a head in Wilson v. Wilson,[13] where the Supreme Court of Georgia confronted a mediation that may or may not have been court-connected and raised significant questions about the admissibility of the mediator's voluntary testimony in a subsequent trial. In light of the murky and inconsistent state of the law on mediation confidentiality, the Court justified its decision to allow the evidence by citing the Uniform Mediation Act (UMA), which was not Georgia law at the time.[14]
Naturally, the Court's policy-making body for court-connected mediation, the Georgia Commission on Dispute Resolution (GCDR), became interested in a Georgia version of the UMA to fill the gaps left open by confidentiality agreements and evidentiary exclusion and to provide more clarity and consistency to the law governing confidentiality in mediation. The Uniform Law Commission promulgated and approved the UMA in 2001,[15] in collaboration with the American Bar Association's Section on Dispute Resolution. The ABA approved the UMA the following year, and all the major national providers of dispute resolution services have endorsed it. Twelve other states have passed versions of the UMA, and other states currently have it under consideration. Other states, such as Florida, have drawn on the UMA's principles when devising or revising their mediation confidentiality schemes.[16] The UMA is remarkably stable having generated very little case law over its meaning and application.
In 2017, the Atlanta International Arbitration Society (AtlAS) began exploring draft legislation on confidentiality in international mediations. The primary goal of AtlAS is to promote Georgia as a venue for international dispute resolution.[17] One way to achieve this goal is to create an attractive legal environment for the resolution of international disputes by promoting legislation familiar to international practitioners. One obvious candidate was the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Conciliation, which was promulgated in 2002 to serve as a model law for international mediation.[18] But adopting this legislation would not have solved Georgia's problems with confidentiality in domestic mediations.
A 2003 amendment of the UMA incorporated the UNCITRAL Model Law on International Commercial Conciliation.[19]Adopting the UMA in Georgia would therefore allow the GCDR and AtlAS to kill two birds with one stone. Thus, representatives of both bodies formed a joint working group to study and report on the efficacy of the UMA for both domestic and international mediations in Georgia. After several months of study, discussion and revision, the working group recommended adopting a version of the UMA. Since 2018, GCDR, AtlAS and the Dispute Resolution Section of the State Bar of Georgia worked with other stakeholders to garner support for the Act. This group effort ultimately obtained the support of the Judicial Council of Georgia, the Atlanta Chamber of Commerce, numerous sections of the State Bar and the Atlanta Bar Association, the State Bar's Board of Governors and the Association of Conflict Resolution's Georgia Chapter, as well as important input from the Georgia Trial Lawyers Association. The State Bar of Georgia voted to include the GUMA in its legislative package in 2019 and 2021. The General Assembly passed the GUMA on March 25, 2021, and the governor signed it into law on May 10, 2021.[20]
Scope of the GUMA
The GUMA covers "mediation communications," including verbal and non-verbal statements made during a mediation or for the purposes of mediating.[21] "Mediation communications" also includes documents and other materials created for purposes of the mediation.[22] Consistent with the evidentiary...
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