Filing A Lawsuit in Georgia (Country)
April 1, 2024
The Law of Georgia on Mediation came into force on September 27th, 2019. The introduction and encouragement of mediation in Georgia aims to relieve some burden from the Georgian courts.
This article discusses the concept of mediation and its core principles, types of mediation, matters of enforcement, and other details.
What Is Mediation?
Mediation is a means of resolving a legal dispute. It involves the parties to the dispute and a neutral third person - mediator.
Unlike litigation and arbitration, the third neutral party does not make a decision on behalf of the parties. On the contrary - mediation is called a “process of the parties” as the parties themselves decide whether they will reach an agreement; and if yes, what will be the terms of the agreement. Thus, active participation of the parties is of paramount importance.
What Are The Principles Of Mediation?
Mediation has three primary principles. They find their source either in the law or through established practice.
Voluntary Nature
One of the most important principles of mediation is that it is voluntary by nature:
- The parties themselves decide to resolve the dispute through mediation.
- The parties, with the assistance of a mediator, identify the relevant issues.
- They brainstorm ideas
- They decide whether they end the process with an agreement.
- And they themselves determine the content of the agreement.
It is exactly this principle that makes successful meditation a win-win scenario for both parties.
Confidentiality
Unlike litigation, mediation is confidential. Whatever’s discussed during the mediation sessions, remains within the knowledge of the parties involved in the discussions. The information that one party becomes aware of cannot be used in litigation, arbitration, or other dispute resolution venues.
Furthermore, the mediator can hold a private meeting (caucus) with one of the parties. This purports to provide the mediator with the information that the party may not be ready to share with the other party. Another layer of confidentiality protects these meetings - the mediator cannot disclose the received information to anyone without the prior consent of the disclosing party.
There can be extremely rare exceptions to confidentiality, for example, when:
- The disclosure is necessary to protect a person's life or health, to ensure freedom, or to protect the best interests of a minor.
- The disclosure is required by a court or other binding decision.
- The disclosure is necessary for the investigation of a serious crime.
Even in such cases, the principle of proportionality guides the disclosing person.
Neutrality
The appointed mediator shall remain impartial and independent. The mediator needs to disclose the circumstances that may undermine their impartiality or independence. This should happen as soon as they become aware of the circumstances, regardless of the stage of mediation. However, even in these circumstances, the parties may authorize the mediator to serve.
Types Of Mediation
Georgian framework divides mediation into two types.
Court Mediation
This is the type of mediation when the parties have already started litigation.
Due to the nature of the dispute, the court may compel the parties to attempt mediation. In this case, mediation is mandatory and the parties shall engage in good-faith negotiations.
Article 187^3(1) of the Civil Procedure Code of Georgia enumerates the types of disputes subject to mandatory mediation:
- Family disputes (except for adoption, annulment of adoption, cancellation of adoption, restriction of parental rights, deprivation of parental rights, as well as disputes related to violence against women and/or domestic violence).
- Inheritance disputes.
- Neighborhood disputes.
- Labor disputes (except for the collective disputes).
- Disputes related to the realization of shared rights.
- Property disputes (if the value of the subject of the dispute does not exceed 20,000 GEL).
- Disputes arising from loan agreements concluded by Georgian banking institutions, microfinance organizations, or non-bank depository institutions (if the value of the subject of the dispute does not exceed 10,000 GEL).
- Non-property disputes.
Alternatively, the parties may voluntarily agree to temporarily stop the court proceedings and attempt mediation.
Private Mediation
The parties may agree to attempt mediation even without going to court. This can take place before the dispute even arises, for example, when a contract is signed. Or the parties may come to this decision when the dispute has already arisen.
This type of mediation is called private mediation and it’s overseen by the Mediators Association of Georgia.
Mediators And Their Functions
In Georgia, mediation requires the involvement of a mediator. One would qualify as a mediator if they are a member of the Mediators Association of Georgia. You can find the list of licensed mediators here.
We mentioned that a mediator does not make a decision. One may wonder - if the mediator does not make a decision, what is their function then?
The mediator has two primary functions:
- By asking questions, the mediator assists the parties with understanding their (the parties’) real interests. Thus, the parties move from their legal positions to interest-based negotiations. This enables the parties to find a win-win solution to their conflict. This video about the famous “Orange Quarrel” serves as a good representation of this.
- Ultimately, by engaging in communications and weighing different solutions, the mediator helps the parties make an informed decision - whether they decide to reach an agreement or not.
The non-exhaustive list of the functions that the mediator does not have is as follows:
- Judging or making decisions.
- Providing legal consultation.
- Drafting mediation or settlement agreements.
- Approving or disproving someone.
- Brainstorming ideas.
Interestingly, currently, most mediators are also lawyers or psychologists. However, when serving as mediators, their complementary professions are not relevant.
Enforcement
A mediation process can end with four possible outcomes:
- The parties reach an agreement. They reflect the terms of the agreement in a Mediation Agreement. A party can then enforce the agreement as a regular contract - first in a court and then through the enforcement bureau.
- The parties reach an agreement. They reflect the terms in a Settlement Agreement approved by a judge. The Settlement Agreement can be subject to enforcement directly through the enforcement bureau. However, this is an option only for Court Mediation.
- The parties are unable to reach an agreement and they decide to continue the dispute in court, arbitration, or other venue.
- The parties are unable to reach an agreement but they do not continue with litigation, arbitration, or other dispute resolution methods.
Considering the above, the Settlement Agreement seems the most recommended outcome as it is approved by the court and subject to direct enforcement.
So… Is It Worth It?
Mediation offers parties a voluntary, confidential, and neutral platform to resolve their disputes with win-win solutions.
The implementation of the new law has significantly improved the landscape of mediation in Georgia. While mediation continues to gain traction in Georgia, the real question is not whether it’s worth it but rather - why not?
Did your case get to litigation?
Read our article on “Filing A Lawsuit in Georgia”.
