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Virtual Mediations: Navigating COVID-19's Uncharted Waters Without a Map

July 31, 2020 BY Nicole Adams

As one of the fast-rising stars for Alternative Dispute Resolution (ADR) in Georgia, mediations have become a popular practice for issue resolution and settlement in cases ranging from multimillion-dollar contract disputes to custody determinations. However, with many courts, law firms, and several other legal entities facing strict restrictions and closures due to COVID-19, no one could have predicted the call to action placed on mediators to revive cases that otherwise would face indeterminable delays in a time of normalized social-distancing and postponed court dates.  

With this unprecedented demand on mediators, reliance on video capabilities and telephone communications have increased tenfold and all required parties now have the option to attend mediations and negotiate disputes from their home office or even their living room. ZOOM (a popular video-conferencing platform) provides a “breakout room” feature which allows the mediator to video-chat with both parties together and separately, which is an essential feature due to the possibility that negotiations can require the parties to disclose confidential information to the mediator to further educate them on the case.   

Despite the impressive transition from in-person to virtual mediations in Georgia, it does not change the fact that the rules governing mediations in Georgia are glaringly underdeveloped and lack uniform structure. Under normal conditions, this deficit could take years of building and restructuring the laws relating to ADR before implementation. However, with the increase in demand for a more concrete legal definition of mediation, a new wave of motivation has emerged to etch the art of mediation into black letter law, or in Georgia’s case, O.C.G.A. §9 which governs Civil Practice.  

Some Georgia Mediation Rules/Exceptions 

With both parties usually in separate rooms and the mediator operating as a neutral influence and information source, some could say that participating in a mediation incorporated social distancing before it became a world-wide necessity. In Georgia, the rules that govern ADR were developed by the Georgia Supreme Court and incorporate several ethical and legal standards1. However, if you are in search of black letter law to define mediations and the legal issues that can arise, you will find a gap exists in Georgia law. As of right now, the Georgia Supreme Court Alternative Dispute Resolution rules focus primarily on confidentiality and ethical regulations for mediation proceedings.  

According to the Georgia Supreme Court Alternative Dispute Resolution rules, statements made during mediation are confidential and are not subject to disclosure by the mediator and may not be used as evidence in any subsequent administrative or judicial proceeding2. However, if the parties reach a settlement agreement in mediation, the written and executed agreement is not subject to confidentiality unless all parties to the proceeding agree so in writing.   

The Georgia Supreme Court Alternative Dispute Resolution rules also designate mediators are mandated reporters which can serve as an exception to the confidentiality rule3. This means that mediators are required to report to the relevant agency any issues that arise during mediation relating to threats of imminent violence; allegations of child abuse; and threats that place any participant at the mediation in fear for their safety during the mediation or thereafter4.  As you can see, some examples of the current rules provide guidance on important issues that can arise during and after a mediation, however, recently our lawmakers in Georgia have desired to delve deeper into the legal definition and liabilities that are present in mediations. 

Mediation Redefined 

A new bill was presented to the Senate in February 2020 entitled, “Georgia Uniform Mediation Act5” with the purpose of amending and restructuring O.C.G.A. § 9 which governs civil practice procedures to provide uniform laws and definitions for mediations and participants in mediation. This bill seeks to provide “definitions and create privileges against disclosure, admissibility, and discovery; to provide for waiver and preclusion of privilege; to provide for exceptions to privilege; to provide for confidentiality and mediator disclosure of conflicts; to provide for international commercial mediation and electronic signatures; to provide for uniformity of construction and severability; to provide for applicability; to repeal conflicting laws”.6 The bill was passed by the Senate and is under review by the House as of June 2020. It is without question, that the increased demand for mediation in the era of COVID-19 has fueled the desire to establish structure and accountability under black letter law for all parties participating in mediations, virtual or otherwise, going forward in Georgia.   

A Newsworthy Mediation 

As most of us Georgians know by now, Georgia Governor Brian Kemp filed a complaint with the Superior Court of Fulton County on July 16, 2020 against Atlanta Mayor Keisha Lance Bottoms et al.7 The complaint focused on blocking Bottom’s emergency mandatory mask mandate for Atlanta which would require Atlanta residents to wear a mask in public amongst other safety guidelines. Fulton County Superior Court Judge Jane Barwick keenly ordered the parties to participate in a mediation on Monday, July 27, 2020 overseen by Senior Judge Cynthia Wright before the scheduled hearing set for Tuesday, July 28, 2020 on the issues8. After several hours of good faith negotiations and discussions between the parties, the emergency order request was withdrawn, and it was mentioned that several misunderstandings between the parties were clarified. Judge Barwick cancelled the hearing, and further ordered the parties to continue mediating. 9 This lawsuit and mediation order made national news and exemplifies the continued importance the legal system should place on ADR and specifically the utilization of mediation proceedings prior to litigation. Not only does mediating efficiently save both parties the monetary cost of litigating, but during our global pandemic it has provided an option for resolution of legal issues where courts have had trouble keeping up. Finally, as shown in the Kemp v. Bottoms case mentioned above, mediation can resolve issues that are rooted in misunderstanding and emotion by simply giving the parties a neutral setting to negotiate and discuss the issues without pressure or outside influence. 

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)