Pre-Suit Mediation in Georgia Personal Injury Cases

Pre-suit mediation is a voluntary negotiation run by a neutral person before any lawsuit is filed, and it only makes sense in Georgia when the two-year clock leaves room for it. Agreeing to mediate doesn’t stop § 9-3-33 from running. A written tolling agreement is a separate document, and it needs a signature from the right party. So the first question isn’t who the mediator will be. It’s what happens to your deadline if the session fails.

Protect the deadline first

Risk	Step
Two-year limit, § 9-3-33	Calendar it, and work back from it
Government defendant	Notice dates in § 36-33-5, § 36-11-1, or § 50-21-26 run separately
Other deadlines	Ask about statutory tolling rather than assuming
Tolling agreement	Signed by the defendant or someone with authority to bind that person, and check that it covers every party
Time left is short	File first, and mediate after

Tolling and exceptions has the statutory list, and when to file suit weighs filing against talking. An insurer’s letter agreeing to talk doesn’t automatically bind its insured on limitations. So if tolling matters, read the document with counsel.

When it fits, and when it doesn’t

Points toward mediating now	Points away
Fault has good support	Fault turns on records only discovery can get
Treatment has reached a stable point	Surgery or a key diagnosis is still pending
Records and bills are complete	Damages can't yet be estimated
The insurer will attend with someone who can decide	The other side won't commit to attending with authority
Coverage is known, under § 33-3-28	A coverage dispute is unresolved
Your own funds or health make time matter	A time-limited demand is pending, and mediation could muddy it

There’s no neutral answer on bad-faith timing. An unaccepted time-limited demand can set up a later claim above limits, and agreeing to something else in the meantime may affect that. So raise it with counsel before scheduling.

What’s confidential, and what isn’t

Section 24-4-408(b) says “[e]vidence of conduct or statements made in compromise negotiations or mediation shall not be admissible”. That’s a real protection, and it has edges:

• Under (c), it doesn’t exclude “any evidence otherwise discoverable merely because it is presented” at mediation. So a medical record shown there is still discoverable.
• It doesn’t bar other purposes, including “proving bias or prejudice of a witness”.
• Georgia’s Alternative Dispute Resolution Rules cover court-connected programs. A private pre-suit session rests on the statute and on your mediation agreement, so read that agreement’s confidentiality clause.

Don’t say anything at mediation that you couldn’t live with in a practical sense. The other side’s lawyer will still remember it.

Choosing a mediator

Mediators in a private session are chosen by agreement, so both sides have to accept the person. Questions worth asking:

• What injury cases have they handled, and from which side?
• Do they evaluate a case’s worth, or do they mainly facilitate talks?
• Will they read the records before the day?
• What’s the fee, who pays it, and is there a cancellation charge?
• Do they have any tie to either party, lawyer, or insurer?

Getting ready

Treat the file as if a jury would see it. A mediator can do little with a demand that has no support.

Prepare	Why
A mediation statement	Decide what's shared with the other side, and what goes to the mediator only
Records, bills, and wage proof	The carrier needs them to justify a figure
A doctor's view on the future	Future care is hard to negotiate without it
Current lien figures	Liens reduce what you take home
Your net number	Know your range after fees, costs, and liens
Who must approve	A minor or an estate may need court approval

Medical liens and settlement documentation explain the last rows. Your lawyer can’t settle a claim by guessing what you want, and you should decide in advance what you’d need to hear to change your mind.

The day itself

Sessions vary by mediator. A joint opening may be skipped, especially where it would only raise the temperature. Then the mediator moves between private rooms, carrying offers and testing each side’s assumptions. Expect a low opening, and expect to be told about your case’s weaknesses. That’s part of the job, and it doesn’t mean the mediator has taken a side.

A plaintiff’s part is to listen and to decide, with the lawyer advising. Be careful, though, because Georgia treats an attorney of record as having apparent authority to bind a client. In Brumbelow v. Northern Propane Gas, 251 Ga. 674 (1983), the Supreme Court of Georgia said such an agreement “is enforceable against the client by other settling parties”. So be clear with your lawyer about limits before and during the day.

If it settles, or doesn’t

If it settles. Get the main terms in a signed writing before leaving. They should cover the amount, who’s released, what happens with liens, when payment comes, and any confidentiality term. Details follow in closing a case.

If it doesn’t. You’ve lost a day and the mediator’s fee, and you’ve learned something about how the other side sees the case. Offers may remain open, or the mediator may keep working by phone. Check the calendar again, because the limitations period didn’t stop for the session. If suit is filed, mediation during litigation may follow under a court’s order.

Sources

• Brumbelow v. Northern Propane Gas, 251 Ga. 674
• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-33, 24-4-408, 33-3-28, 36-11-1, 36-33-5, 50-21-26

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.