Mediating with a Public Entity in Georgia

In Georgia, mediation of litigation that involves a public entity can be a bit trickier than just getting the agreement to mediate, along with a date, time and location.   When Georgia’s public entities mediate a dispute, the mediation may require compliance with Georgia’s Open Meetings Act.

Often, litigation can only be settled through an act of the legislative body of  a county or city, for example.   So, does mediation require that the City Council or County Commission convene for the mediation session?  If so (or if a sufficient number of members of that body attend), the mediation will be subject to the Open Meetings Act.

The Open Meetings Act requires, among other things, that notice of certain meetings be published to the public and that these meetings be open to the public.  On the other other hand, one of the hallmarks of mediation is that it is a process that is typically confidential, though it does not have to be.

In litigation, often the parties want mediation to be confidential.  Consider the mediation of a personal injury case.  The injured party or that party’s family may not want the public to hear or see information that is sensitive or private.  The person or entity accused of causing the injury may also be less willing to negotiate or make concessions if the matter is public, particularly if it is before voters.    Simply put, privacy can aid resolution.

So, how can negotiations with a public entity through mediation be shielded from public view?  In Georgia, only to a certain degree.

There are typically two commonly used routes that public entities use in Georgia to provide some measure of confidentiality to mediation proceedings:

The first route involves negotiating in mediation with a public entity’s representative, such as an attorney, with the understanding that the agreement forged during mediation would be subject to approval by the City Council/County Commission.  In short, this route involves creating a tentative agreement at mediation and requires a measure of faith on the part of the party opposite the public entity.   It’s usually worth the leap of faith.

The second route involves the public entity satisfying the notice requirements of the Open Meetings Act and the meeting must be open to the public.  However, there are a few instances where the Council or Commission may retreat into “executive session,” whereby the public is not permitted.  One of the authorized reasons for going into executive session is “pending litigation.”   In executive session, perhaps, a Council or Commission can discuss settlement offers during a mediation.   The approval of any settlement, of course, would require the Council or Commission to exit executive session and publicly act on the agreement.

At the end of the day, a court or a party’s insistence that a Council or a Commission be present at mediation may not only be very impractical, but also counterproductive.   As such, a little faith in the mediation process and a little faith that the public entity’s representative is not trying to waste its own time negotiating a deal that is unlikely to be approved is a recommended route that has worked time and time again in Georgia.

Mediation Tips on Opening Statements

 By Burke Johnson, Esq. & John Hadden, Esq.

Mediations often begin with the parties beginning the session together.  During this joint session, mediators often provide the parties with an opportunity to make an “opening statement.”   Parties sometimes make the mistake of treating an opening statement in mediation identically to an opening statement that would be made to a jury during trial.  Below are three tips to avoid such a misstep right out of the gate.

Confidence Without Arrogance 
          In a mediation opening statement, it is important to convey the strengths of your case, while at the same time making clear that you are willing to listen to the other side and negotiate in good faith.  A good opening statement should include both elements.  This is truly an art and is very client and case sensitive.

Calculate the Impact of Information

          How elaborate or detailed should the case presentation be during the opening statement?  You are not likely to convince the opposition that they will lose at trial or to impress (scare) the other side with mere puffery.  The ultimate goal in mediation is to obtain the best result. This requires good preparation.

          Putting up a strong case during an opening statement and/or providing compelling information during negotiations demonstrates a willingness to put the time and money into preparing a case for trial.  It also assists the opposition with valuing its case more accurately.  Withholding compelling information at mediation can result in a lost opportunity for strong negotiation.  As such, calculate the impact of sharing information in an opening statement.

Direct Communication

          In most mediations, attorneys exclusively deliver the opening statement and the actual party remains silent.  Whether a party speaks often involves a multi-factored assessment that turns on the client’s personality, likelihood to misspeak, and demeanor.  Additionally, the cathartic effect of speaking and feeling they have “had their day in court” can be a critical factor for whether a party speaks in an opening statement. On the other hand, what the client may say and how it is said may result in a setback of negotiations.  Particularly in disputes that are emotional, such as personal injury cases, statements that inflame or alienate the other party are counter-productive.

          Balancing these factors is difficult.  However, technology may offer a solution.  Many attorneys fail to consider using video clips in their opening statements at mediation.  In disputes that are less “corporate” in nature, incorporating a well rehearsed video clip of the client (and perhaps a spouse, too) into an opening statement can be compelling.  Pre-recorded videos can mitigate the risk of a client performing poorly or offending the other side.  It also can remind the other side of the personal nature of the case (and how a jury may react).  It is a great way to make the most out of an openingstatement at mediation that sets a strong tone for getting negotiations going.