Mediation in Georgia Personal Injury Cases: Settlement Conference Strategy

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What an injured person says in a Georgia mediation, and what the other side says back, is, with stated exceptions, kept out of the case. Georgia’s mediation statute makes mediation communications privileged, bars the mediator from reporting the substance of the session to the judge, and the evidence code separately excludes statements made in compromise negotiations. The protection has limits, and one of them decides what happens to a settlement: an agreement signed by the parties is not privileged at all.

What Mediation Is and When the Statute Applies

“Mediation” means “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute” (OCGA 9-17-1(1)). A “mediator” is “an individual who conducts a mediation, or if conducting a mediation pursuant to the Supreme Court of Georgia Alternative Dispute Resolution Rules governing the use of alternative dispute resolution mechanisms by the courts of this state, an individual qualified to mediate under such rules” (OCGA 9-17-1(4)).

The chapter applies to a mediation in which the parties “are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator”; in which the parties and the mediator agree to mediate “in a record that demonstrates an expectation that mediation communications will be privileged against disclosure”; or in which the parties use as a mediator “an individual who holds himself or herself out as a mediator or as a provider of mediation services” (OCGA 9-17-2(a)).

What Is Privileged

Except as OCGA 9-17-6 provides, “a mediation communication is privileged” and “is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded” (OCGA 9-17-3(a)). A mediation party “may refuse to disclose and may prevent any other person from disclosing a mediation communication,” and the mediator and any nonparty participant hold a matching privilege as to their own communications (OCGA 9-17-3(b)). But “[e]vidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation” (OCGA 9-17-3(c)).

The privilege can be waived “in a record if it is expressly waived by all mediation parties” (OCGA 9-17-4(a)). A person “that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege,” to the extent necessary for the prejudiced person to respond (OCGA 9-17-4(b)).

Where the Privilege Stops

There is no privilege for a mediation communication that is “[i]n an agreement evidenced by a record signed by all parties to the agreement” (OCGA 9-17-5(a)(1)). Nor is there one for a threat or statement of a plan “to inflict bodily injury or commit a criminal act of violence,” for a communication intentionally used to plan or commit a crime, or for communications offered on a claim of professional misconduct or malpractice against the mediator or, with limits, against a party or representative based on conduct during the mediation (OCGA 9-17-5(a)(3)-(6)). A court may also lift the privilege after a hearing in camera, in a felony proceeding or in a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, a contract arising out of the mediation, if the evidence is not otherwise available and the need for it “substantially outweighs the interest in protecting confidentiality” (OCGA 9-17-5(b)). Even then, “only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted” (OCGA 9-17-5(d)).

What the Mediator May Tell the Court

“[A] mediator shall not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation” (OCGA 9-17-6(a)). The mediator may disclose “[w]hether the mediation occurred or has terminated, whether a settlement was reached, and attendance,” and a communication made in violation of the rule “may not be considered by a court, administrative agency, or arbitrator” (OCGA 9-17-6(b)(1), (c)).

The Evidence Rule

Separately, “[e]vidence of conduct or statements made in compromise negotiations or mediation shall not be admissible” (OCGA 24-4-408(b)). The rule does not require exclusion of “any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation,” or of evidence “offered for another purpose, including, but not limited to, 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” (OCGA 24-4-408(c)). A further section provides that mediation and mediation communications “shall not be admissible or subject to disclosure, except to the extent agreed to by the parties in writing or as provided in Code Section 24-4-408 or other law or court required rule of this state,” unless the open records law applies (OCGA 9-17-7).

Mediation and a Statutory Offer of Settlement

A written offer of settlement under OCGA 9-11-68 is a different device. It can be served once more than 30 days have passed since a party was served with the summons and complaint, and no later than 30 days before trial, or 20 days for a counteroffer (OCGA 9-11-68(a)), and the evidence rule on compromise offers yields to it: offers to compromise are inadmissible to prove liability or the amount of a claim “[e]xcept as provided in Code Section 9-11-68” (OCGA 24-4-408(a)).

Frequently Asked Questions

Does the privilege hold when the other side is a public body?
The open records law can matter. There is no privilege for a mediation communication that is “[a]vailable 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” (OCGA 9-17-5(a)(2)).

Can the parties agree that the mediation will not be private?
Yes. The parties may agree in advance, in a signed record, that all or part of a mediation is not privileged (OCGA 9-17-2(c)).

Does the statute apply when a judge mediates?
Not to a mediation “[c]onducted by a judge where that judge acts as a mediator and may still make a ruling on the dispute” (OCGA 9-17-2(b)(3)).

  • OCGA 9-17-1(1), (4); OCGA 9-17-2(a), (b)(3), (c); OCGA 9-17-3; OCGA 9-17-4(a), (b)
  • OCGA 9-17-5(a)(1)-(6), (b), (d); OCGA 9-17-6(a), (b), (c); OCGA 9-17-7
  • OCGA 24-4-408(a), (b), (c)
  • OCGA 9-11-68(a)

Disclaimer

This article provides general information about mediation under Georgia law. It is not legal advice and does not create an attorney-client relationship. What is privileged and how a mediation proceeds depend on the parties’ agreement, the court’s orders, and the specific facts. A person considering mediation should consult a licensed Georgia attorney promptly about the particular situation.

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