Effective July 1, 2021, Georgia becomes the thirteenth state to enact the Uniform Mediation Act (the “Act”).1 The Act, which was drafted in cooperation between the American Bar Association’s Section of Dispute Resolution and the National Conference of Commissioners on Uniform State Laws, offers uniform standards for mediators and parties who agree to participate in mediation or other alternative dispute resolution (ADR) programs. It was created to provide clarity on certain issues of mediation, such as the privilege of confidentiality, and has ultimately been adopted to promote the use of the process. If a party is concerned about a possible lack of confidentiality during a mediation/ADR process, the incentive for candor and honesty, both essential parts of any fruitful discussions, may be lost. The Act provides guidance on privileges against disclosure, admissibility and discovery as well as the rules relating to the waiver and preclusion for confidentiality. The Act provides a clear privilege that assures confidentiality in legal proceedings, creates limitations regarding allowable disclosures by mediators to judges who may rule on the pending case and requires mediators to disclose potential conflicts of interest. The Act’s goal is to enhance public confidence in ADR by supporting confidentiality, promoting open communication and strengthening the integrity of the mediation process. There are definitely benefits to having a main body of law governing all aspects of mediation within a state rather than having potentially conflicting rules between court and private mediation programs. Uniformity of the rules and procedures creates clarity with respect to conflicts in jurisdictional enforceability as well as international acceptance (the Act also provides for the adoption of the United Nations Commission on International Trade Law).
The Act spells out what confidentiality in fact means with regards to the parties, non-parties, lawyers, as well as the mediator. Ultimately, information shared during a mediation would be considered privileged and confidential, unless this right is waived by all parties to the mediation. Furthermore, any information shared during a mediation would be deemed inadmissible for use at trial and otherwise not subject to discovery. Finally, the discussions that occur during mediation would be viewed as protected, equivalent to the attorney-client privilege.
Relevant sections in the Act include the definition of a “mediation” as a “process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute” and the definition of a ”mediation communication” as a “statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, terminating, or reconvening a mediation or retaining a mediator”.
The following privileges apply under the Act:
- A mediation party may refuse to disclose and may prevent any other person from disclosing a mediation communication;
- A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator; and
- A nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication of the nonparty participant.
The Act also clarifies that there shall be no privilege for a mediation communication that is:
(1) In an agreement evidenced by a record signed by all parties to the agreement;
(2) Available to the public under Article 4 of Chapter 18 of Title 50, relating to open records, or made during a session of a mediation which is open, or is required by law to be open, to the public;
(3) A threat or statement of a plan to inflict bodily injury or commit a criminal act of violence;
(4) Intentionally used to plan a criminal act, to commit or attempt to commit a criminal act, or to conceal an ongoing criminal act or criminal activity;
(5) Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;
(6) Except as otherwise provided in subsection (c) of this Code section, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(7) Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the public agency participates in the Division of Family and Children Services mediation.
Georgia already has a longstanding structure to govern and control the management of mediation and alternative dispute resolution in the State as provided by the Georgia Supreme Court. The Georgia Supreme Court Rules address the qualifications to be a neutral, including the ethical standards for neutrals and the educational and training requirements to be approved. The approval of the Act in Georgia is unlikely to contradict the intended goals and procedures of the Georgia Supreme Court Rules.
Anyone acting as a mediator or participating in a mediation after July 1, 2021 should review the Uniform Mediation Act and be comfortable with its requirements. The Act adds a new chapter to Title 9 and is labeled under O.C.G.A. §9-17-1 through §9-17-14.
For over thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at Scott@wzlegal.com
[1] Other States that have enacted the Uniform Mediation Act are Nebraska and Illinois (2003), Iowa, New Jersey, Washington and Ohio (2005), Utah, Vermont and the District of Columbia (2006), South Dakota (2007), Idaho (2008) and Hawaii (2013)