Georgia Uniform Mediation Act (“GUMA”) became law in Georgia on July 1st, 2021. At first sight, it might appear that the Act is simply the codification of what many mediation centers already set out in their terms and conditions. However, further analysis shows that the Act has far-reaching implications and reflects an intent from the legislators to reinforce Georgia as a center for dispute resolution. It is important to remember that the GUMA supports the Supreme Court’s ADR rules and does not conflict with them. In other words, there are now two documents that every participant to a mediation in Georgia should read before they step into a mediation.
Confidentiality and Uniformity
GUMA seeks to confirm in legislation the requirement that mediations are to be treated as confidential and confers privilege on the communications between the parties and the mediator. This privilege now applies equally to private mediations as well as “court-connected” mediations. Although most mediation centers state the terms of confidentiality in private mediations outside of the court system, they rely on contractual agreements, indemnity provisions, and cost sanctions to enforce such terms.
GUMA sets out a statutory privilege in precise wording, with few exceptions. Mediators and mediation centers will likely incorporate the terms of the GUMA to avoid argument over inconsistency; after all, the dominant purpose of the Act is set out in its title “ Uniform.” In addition, in today`s online world, many mediation participants are likely to be outside of the State where the mediation is being held, leading to uncertainty about how confidentiality and conflicts of interest are being addressed. By providing that the UGMA applies to such multi-state mediations through the incorporation of the UNICTRAL model law (see below), the legislators have provided the participants with clarity and comfort and a compelling argument as to why Georgia should be selected as the location of any multi-state mediation.
Conflicts of Interest
One of the areas that has long been an issue in mediation is the need to reconcile impartiality and the relationship between the mediator and one or more of the parties. This issue has been addressed, in part, by the Act, which requires mediators to proactively disclose to parties both possible and perceived conflicts of interest. While this welcome requirement places a positive obligation on the mediator to disclose, the Act does not define what a possible or perceived conflict of interest or personal interest might be.
“Before accepting a mediation, an individual who is requested to serve as a mediator shall:
- Make a reasonable inquiry to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and
- Disclose any such facts to the mediation parties as soon as practical before accepting a mediation.
The examples above focus on obvious ”possible or perceived“ conflicts but do little to address the real world of mediator selection. For example, is it acceptable for a mediator to have a coffee, lunch, or even dinner with an attorney who has referred mediation work to that attorney? Given that most mediators are selected in part based upon prior experience, personal knowledge by at least one of the parties, and their ability to be persuasive, does this new requirement preclude the mediator from accepting the case? Probably not. It does, however, encourage parties to a mediation to consider other criteria when selecting the right mediator for their case, moving past existing relationships, and embracing a more objective selection process.
What it also does is ensure that mediators are aware of their obligations to disclose the extent of their connection or relationship with one or more of the parties and obtain an acknowledgment and effective waiver of any “personal interest.” As a practical matter, mediators should disclose the extent of their relationship with any of the parties prior to accepting a mediation. The parties to a mediation consequently can and should reject a mediator if they are uncomfortable once they have reviewed all the information presented.
International Mediations in Georgia
Georgia is currently the only state to have incorporated the United Nations Commission on International Trade Model Law on international mediations ( referred to here as “UNICTRAL model law” but known through its catchy nomenclature as “Model Law on International Commercial Mediation and International Settlement Agreements resulting from Mediation”) into its mediation act. The Atlanta International Arbitration Society (“ ATLas”), who was instrumental in helping pass GUMA can be credited for ensuring the inclusion of the UNICTRAL model law. The incorporation of the model law provides Georgia with a unique selling point as a venue for the resolution of international disputes (both intra-State and International) and ATLas and the legislature have clearly signaled their commitment both to ADR and in establishing Georgia as a center for ADR within the US. The UNICTRAL model laws also provide a mechanism to seek enforcement of any settlement or deal with relief where one or more participants have breached the requirements of the model law.
It is worth noting that the UNICTRAL model law applies to “trade disputes” and is not designed to cover multi-state casualty and personal injury claims. In order to ensure the applicability of the UNICTRAL model law rules (which provides similar rules as GUMA on the issues of confidentiality, impartiality, and disclosure requirements), parties to a personal injury, or non-trade dispute, should consider expressly adopting the model law, whether through the mediation center’s own Terms and Conditions or in writing between the parties.
GUMA also addresses electronic signatures, clarifies the circumstances where the new privilege can be waived, and establishes a number of helpful definitions. In short, Georgia’s new legislation goes beyond existing statutes in several ways in order to facilitate procedurally consistent mediation within Georgia while providing an ideal mediation venue for businesses that conduct business nationwide or internationally.