New Year Blog about Last Year's Cases

We’ve been working on the 2008 pocket part for the treatise, and several cases struck us as interesting. First, has to be Wilson v. Wilson, --Ga.--, --- S.E.2d ----, 2007 WL 4124349 (Ga.), in which the Georgia Supreme Court bent the confidentiality provisions of its own ADR Rules; second, is a couple of opinions from Georgia’s federal courts illustrating how labor arbitration and commercial arbitration standards can be mixed; and, third, is an oddity from our Court of Appeals in which court-connected non-binding arbitration is once again merged somehow with private commercial arbitration.

When private mediations are really court-connected and a new exception to confidentiality --
For mediators and perhaps for ADR practitioners generally, Wilson v. Wilson, --Ga.--, --- S.E.2d ----, 2007 WL 4124349 (Ga.) is easily the most interesting case of this year. Mr. Wilson challenged the lower court’s enforcement of a mediated divorce agreement. The first issue was whether the mediation was court-connected, and therefore governed by the court’s ADR rules, or not. The divorce was filed in the Coweta Judicial Circuit, which had adopted a standing order requiring all contested divorce cases to participate in mediation. Mr. Wilson's attorney filled out a form to initiate mediation with the Coweta ADR Program, but due to a request by the attorneys not to schedule the case for mediation “pending further discovery,” the Program Director placed the case on inactive status until hearing back from the attorneys. A couple of months later and without informing the circuit’s mediation center, the parties privately chose a mediator (registered with ODR but not on the center’s list) and reached the mediated agreement without their attorneys present. The Coweta court said it was a private mediation conducted outside of its rules, but the Georgia Supreme Court determined otherwise reasoning that the mediation was initiated by the standing order, the local rules allowed parties to pick ODR-registered mediators not on the court’s list, and the parties did not avail themselves of the procedure to opt-out of the court-connected mediation. The moral of this story is that mediators may think they are handling a private mediation, but if the dispute is in court, that mediation may be “court-connected,” and the mediator should be sensitive to the prevailing rules governing the process.

The sexy issue in Wilson, however, involves confidentiality. During the lower court hearing, Mr. Wilson testified that he wasn’t sufficiently competent to enter into the agreement; however, the mediator was also called to the stand and testified about his general impression that both of the parties had the mental capacity to engage in the mediation and settlement. On appeal, Mr. Wilson argued that calling the mediator to the stand violated the confidentiality portion of the agreement to mediate, which provided, “all written and oral communications, negotiations and statements made in the course of mediation will be treated as privileged ... and are absolutely confidential.” Presumably, this also violated the confidentiality provisions of part VII. A. of the Georgia Alternative Dispute Resolution Rules, which provide that mediators cannot “be subpoenaed or otherwise required to testify concerning a mediation,” and is completely contrary to the spirit of Advisory Opinion 6 of the Commission’s Ethics Committee. Relying on an exception to confidentiality in the Uniform Mediation Act (which is not the law in Georgia), the Court rejected Mr. Wilson’s argument and concluded “that fairness to the opposing party and the integrity of mediation process dictate that we create such an exception when a party contends in court that he or she was not competent to enter a signed settlement agreement that resulted from the mediation.” This decision is similar to that made by the court in Olam v. Congress Mortg. Co., 68 FSupp2d 1110, 1137 (N.D.Cal.1999). There are many interesting questions about Wilson, not the least of which is the expertise of mediators to testify as to mental competence, but here’s the one we should be thinking about: When a mediator comes to the “confidentiality” information in the introductory statement, should he or she detail this new exception? It appears so.

Is this labor arbitration?
If you get a chance, read the following cases:
Aldred v. Avis Rent-A-Car, Slip Copy, 2007 WL 2110720 (C.A.11 (Fla.) (2007), in which the court used both FAA and labor arbitration standards in reviewing an award under a collective bargaining agreement, and Bryant Motors, Inc. v. Blue Bird Body Co., Slip Copy, 2007 WL 1832016, , M.D.Ga., June 25, 2007), modified by Bryant Motors, Inc. v. Blue Bird Body Co., Slip Copy, 2007 WL 2422133, (M.D.Ga. 2007), in which the court mixes standards and cases from labor arbitration with the FAA in its analysis on a motion to vacate a commercial arbitration award. Note that the US Supreme Court has yet to address the applicability of the FAA to arbitration clauses in collective bargaining agreements. John Allgood makes some informative comments in this regard (see his comments to this post).

Obong Redux
Who can forget that madcap case, Obong v. Ekereke, 216 Ga. App. 59 (1994), in which it was unclear whether the parties had participated in a voluntary binding arbitration or a court-connected mandatory non-binding arbitration? Needless to say, but I’ll say it - the difference is important. The Court of Appeals concluded it was the latter, and the Supreme Court concluded it was the former. Ekereke v. Obong, 265 Ga. 728 (1995). Of course, those were the formative days of Georgia ADR. Now, we have Lowe v. Center Neurology Associates, P.C., --- Ga. App. ---, --- S.E.2d ----, 2007 WL 2822420, in which the court uses the Georgia Arbitration Code for authority in a case that appears to have been referred by the lower court to court-connected mandatory non-binding arbitration, to which the Georgia Arbitration Code would not be applicable. Oops…