§ 9-17-5.When communication privilege is inapplicable; use of mediation evidence

Section 9-17-3 promises a privilege, and this section lists what it does not cover. Subsection (a) removes the privilege entirely — for every mediation participant, not just the one who might want to invoke it — from seven categories of communication. A signed settlement agreement itself is not privileged, nor is anything already open to the public under Georgia’s open records law or spoken during a mediation session that is open, or required to be open, to the public. A threat to inflict bodily injury or commit a violent crime carries no privilege, and neither does a communication intentionally used to plan, commit, attempt, or conceal a criminal act. Communications offered to prove or disprove a misconduct or malpractice claim against a mediator lose their privilege outright, and the same is true, with one qualification described below, of communications offered to prove or disprove a misconduct or malpractice claim against a mediation party, nonparty participant, or party representative arising from conduct during the mediation. The final category reaches communications offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding where a child or adult protective services agency is a party — unless that agency itself took part in a Division of Family and Children Services mediation, in which case the privilege can still apply.

Subsection (b) opens a second, harder route past the privilege. A court, agency, or arbitrator can find, after an in-camera hearing, that the party seeking the evidence has proven three things: that the evidence is not available anywhere else, that the need for it substantially outweighs the interest in keeping mediation confidential, and that the communication is sought in a felony court proceeding or, with the same qualification noted above, a proceeding to rescind, reform, or defend against liability on a contract that grew out of the mediation. Once that finding is made, the privilege gives way — the bar sits considerably higher here than the flat exclusions in subsection (a), since a showing of relevance alone is not enough.

Subsection (c) supplies that qualification, and it runs in the mediator’s favor specifically. Even though the professional-misconduct communications in paragraph (a)(6) and the contract communications in paragraph (b)(2) carry no privilege as a general matter, the mediator personally cannot be compelled to give evidence about them. The exception opens the door for other participants and documents; it does not force the mediator onto the stand.

Subsection (d) keeps either route from swallowing the whole mediation. When a communication loses its privilege under subsection (a) or (b), only the portion of it necessary to the specific exception may come into evidence — not the surrounding conversation. And admitting a communication under one of these exceptions does not turn it, or any other mediation communication, into fair game for some unrelated purpose later in the case.