§ 9-17-5. When Communication Privilege Is Inapplicable; Use of Mediation Evidence

1. There shall be no privilege under Code Section 9-17-3 for a mediation communication that is:
   1. In an agreement evidenced by a record signed by all parties to the agreement;
   2. Available 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;
   3. A threat or statement of a plan to inflict bodily injury or commit a criminal act of violence;
   4. Intentionally used to plan a criminal act, to commit or attempt to commit a criminal act, or to conceal an ongoing criminal act or criminal activity;
   5. Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;
   6. Except as otherwise provided in subsection (c) of this Code section, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
   7. Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the public agency participates in the Division of Family and Children Services mediation.
2. There shall be no privilege under Code Section 9-17-3 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:
   1. A court proceeding involving a felony; or
   2. Except as otherwise provided in subsection (c) of this Code section, a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
3. A mediator shall not be compelled to provide evidence of a mediation communication referred to in paragraph (6) of subsection (a) or paragraph (2) of subsection (b) of this Code section.
4. If a mediation communication is not privileged under subsection (a) or (b) of this Code section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) of this Code section does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

History. Code 1981, § 9-17-5 , enacted by Ga. L. 2021, p. 646, § 2/SB 234.

Law reviews.

For article with annual survey on trial practice and procedure, see 73 Mercer L. Rev. 265 (2021).