JC/AOC staffer, Noelle Lagueux-Alvarez, recently discussed the newly-enacted Georgia Uniform Mediation Act with Tracy B. Johnson, Executive Director of the Georgia Office of Dispute Resolution.
Noelle Lagueux-Alvarez: In your own words, what is the Georgia Uniform Mediation Act?
Tracy B. Johnson: Georgia is a national leader in the dispute resolution field for court-ordered cases. Since 1993, the Supreme Court Alternative Dispute Resolution (ADR) Rules have regulated court-connected mediation sessions. Under these rules, parties in a mediation session are assured certain protections such as confidentiality, immunity, and mediator impartiality. However, there were no such rules or laws governing mediations occurring outside of the judicial system, oftentimes referred to as “private” cases. With the passage of the Georgia Uniform Mediation Act (GUMA), mediators and participants in private mediations will have protections similar to those currently available in court-connected mediation. GUMA will also help Georgia compete as a venue for both domestic and international mediations, and provide a foundation for international mediation.
NL-A: How long has the Georgia Commission on Dispute Resolution been working to support the passage of the Georgia Uniform Mediation Act?
Tracy B. Johnson: On August 23, 2017, the Georgia Supreme Court’s Commission on Dispute Resolution (GCDR) and the Atlanta International Arbitration Society (AtlAS) formed a Joint Working Group to study problems in Georgia mediation law and make a recommendation on adopting the GUMA. The group met several times over a six-month period and in 2018 presented the GCDR with their recommendation to support the passage of the UMA in Georgia. Since 2018, the Georgia Office of Dispute Resolution (GODR) worked with other stakeholders to garner support for the Act. It was a group effort; along with GCDR and the Atlanta International Arbitration Society (“AtlAS”), the measure was supported by: the Judicial Council of Georgia; State Bar of Georgia’s Board of Governors, Dispute Resolution Section, Trial and General Practice Section, International Trade and Legal Services Section, and Family Law Section; Atlanta Bar Association; Atlanta Chamber of Commerce; and the Association of Conflict Resolution’s Georgia Chapter. We are thankful that the State Bar of Georgia recognized the tremendous benefit that the GUMA would have in Georgia and voted to include it in its legislative package in 2019 and 2021.
NL-A: When will the Georgia Uniform Mediation Act go into effect?
Tracy B. Johnson: The GUMA will go into effect July 1, 2021.
NL-A: What are the major provisions of the Georgia Uniform Mediation Act and how does it change Georgia law?
Tracy B. Johnson: While there are many highlights of the GUMA, confidentiality, party protection, uniformity, and international mediations are at the top of the list:
| a. | Confidentiality: Current Georgia law on mediation confidentiality is inconsistent and confusing. Most notably, the laws protecting confidentiality in court-connected mediation are different from those applicable to private mediation. The GUMA establishes an evidentiary privilege for mediators and participants that prohibits what is said during the mediation from being used in later legal proceedings. |
| b. | Party Protection: Georgia mediation law is inconsistent and weak on requiring mediators to make disclosures as to possible or perceived conflicts of interest. The GUMA’s privileges and protections of confidentially attach to mediators based on the adequacy of their disclosures to the parties of any possible conflicts of interest that arise before and during the mediation. |
| c. | Uniformity: Uniformity of the law helps bring order and understanding across state lines. Without uniformity, there can be no firm assurance in any state that a mediation is privileged. Uniformity is particularly important in cross-jurisdictional mediation. Because it is unclear which state’s laws apply in those cases, the parties cannot be certain of the reach of their home state’s confidentiality protections. |
| d. | International: The GUMA incorporates the 2018 United Nations Commission on International Trade’s Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. In doing so, the GUMA modernizes the legal regime governing international mediations conducted in Georgia (i.e., mediations involving at least one foreign participant). Georgia is the first state in the United States to adopt this aspect of the UMA, which will further solidify Georgia’s position as one of the world’s leading venues for the resolution of cross-border business disputes. |
a. Confidentiality: Current Georgia law on mediation confidentiality is inconsistent and confusing. Most notably, the laws protecting confidentiality in court-connected mediation are different from those applicable to private mediation. The GUMA establishes an evidentiary privilege for mediators and participants that prohibits what is said during the mediation from being used in later legal proceedings.
NL-A: How do you anticipate the Georgia Uniform Mediation Act will improve justice in Georgia?
Tracy B. Johnson: The GUMA will improve justice by ensuring that all mediations in Georgia are afforded the protections available under the GUMA, creating a more accessible forum for resolving disputes. This will encourage the use of mediation in a private setting, both domestic and international, allowing disputing parties a more secure option to mediate, and encouraging the growth of international commerce in Georgia. Conflict may be resolved faster, saving the parties time, money, and relationships.
