CEU Electronic Theses and Dissertations, 2025
| Author | Iobidze, Tekla |
|---|---|
| Title | The Enforceability of Mediation Clauses in Georgia: A Legal Analysis |
| Summary | Mediation has steadily gained relevance across modern legal systems, especially over the past two decades, as policymakers and courts alike seek alternatives to overloaded litigation systems and adversarial courtroom strategies. While traditionally viewed as an informal or voluntary process, mediation is now increasingly institutionalized and framed as a legitimate part of a structured dispute resolution landscape. Among the tools used to support this evolution are mediation clauses—contractual provisions that require or encourage parties to attempt mediation before initiating litigation or arbitration. In theory, such clauses promote cost-efficiency, flexibility, and cooperation. But in legal practice, particularly in Georgia, their enforceability remains a source of doctrinal ambiguity and judicial inconsistency. The core objective of this thesis is to examine whether and how mediation clauses are enforceable under Georgian law. While the Law of Georgia on Mediation, adopted in 2019, and subsequent amendments to the Civil Procedure Code of Georgia signal institutional support for alternative dispute resolution, enforcement mechanisms for mediation clauses remain underdeveloped. Courts have not yet established a consistent doctrine on whether they can or should stay proceedings when one party refuses to mediate, especially in cases where the clause lacks procedural specificity. In my view, this reflects a deeper struggle within Georgian legal culture—between the value of voluntariness in mediation and the need for predictability and enforceability in contractual obligations. This thesis argues that the enforceability of mediation clauses in Georgia suffers from a lack of both statutory clarity and judicial guidance. Unlike arbitration clauses, which benefit from robust enforcement under the Law of Arbitration, mediation clauses fall into a procedural grey zone. Judges often hesitate to impose any real procedural consequences on parties who bypass contractual mediation steps, even when those steps are clearly agreed to in writing. At the same time, the concept of "good faith participation" in mediation is poorly defined, and sanctions for bad-faith conduct are largely absent. This undermines party autonomy and diminishes the effectiveness of ADR as a real alternative to litigation. The thesis also examines how international legal instruments, especially the Singapore Convention on Mediation, influence Georgian law. Since Georgia ratified the Convention in 2021, it has formally committed to enforcing international mediated settlement agreements. However, the domestic impact of this treaty is still limited. Its enforcement provisions are rarely invoked, and awareness among legal practitioners and judges remains inconsistent. I argue that Georgia has not yet translated its international commitments into a coherent domestic enforcement framework. To better understand how enforceability functions in practice, I analyzed public data from the Tbilisi City Court’s Mediation Center, covering the years 2018 to 2025. The data reveals that while mediation referrals are rising—particularly in labor and family law disputes—the success rate remains low. Mediation clauses are seldom the initiating factor; most referrals are made by the courts themselves. This points to a disconnect between contract-based mediation and institutionalized (often court-annexed) mediation. In other words, mediation is used more as an extension of litigation than as a real pre-litigation tool. From a comparative perspective, the German model offers an instructive contrast. Germany’s Zivilprozessordnung (ZPO) explicitly allows courts to stay proceedings or impose cost sanctions when mediation clauses are ignored, even though mediation remains formally voluntary. The EU Mediation Directive 2008/52/EC has also contributed to a more enforceable mediation culture across Europe, offering best practices that Georgia could adapt. In addition, many international commercial contracts contain multi-tiered dispute resolution clauses that are only effective when courts respect each procedural step. Georgian courts have yet to fully embrace this layered model. To address these challenges, I propose legislative amendments that would allow courts to stay proceedings based on clearly drafted mediation clauses, coupled with judicial training on best practices and interpretation of ADR clauses. Moreover, I suggest that the Judicial Training Center of Georgia incorporate mediation enforcement doctrine into its curriculum, and that standardized model clauses be distributed through the Georgian Bar Association. These small but coordinated interventions would help build consistency in court decisions and encourage parties to engage in mediation seriously. Ultimately, the enforceability of mediation clauses is about more than procedure. It reflects how seriously a legal system takes party autonomy, contractual integrity, and the legitimacy of dialogue over confrontation. For Georgia, which is undergoing judicial reform and seeking closer alignment with European legal standards, this issue represents a meaningful test of its commitment to modern, cooperative justice. citations: Michael D Sander, ‘The Future of ADR: Professionalism, Policy, and Practices’ (2000) 2000(2) Journal of Dispute Resolution 3. Nadja Alexander, International and Comparative Mediation: Legal Perspectives (Kluwer Law International 2009). Klaus Peter Berger, Private Dispute Resolution in International Business (3rd edn, Kluwer Law International 2020) vol I. Law of Georgia on Mediation, No 4822-RS, adopted 18 July 2019; Civil Procedure Code of Georgia (as amended 2022). Georgian Bar Association, Commentary on the Enforcement of Mediation Clauses in Georgian Legal Practice (Tbilisi, 2024). Law of Georgia on Arbitration, No 1649, adopted 2009. Case No. 3/ბ-210-22 (Tbilisi City Court, 2022). Civil Code of Georgia, art 8. Nadja Alexander and Shouyu Chong, Singapore Convention on Mediation: A Commentary (Wolters Kluwer 2020). United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) (adopted 20 December 2018, entered into force 12 September 2020). Giorgi Gogia, 'The Role of Mediation in Cross-Border Disputes: Georgia’s Legal Adaptation' (2023) 5(2) Caucasus Journal of Law and Policy 77. Tbilisi City Court, Mediation Statistics 2021–2025 (Public Data, 2025). GIAC, Mediation Trends in Cross-Border Disputes (2023). Zivilprozessordnung (ZPO) §278a; Oberlandesgericht Dresden, Judgment of 27 February 2019 – 9 U 1487/18. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3. Judicial Training Center of Georgia, Curriculum on Alternative Dispute Resolution (2022); Georgian Bar Association and Ministry of Justice of Georgia, Model Mediation Clauses and Best Practice Guide (draft, 2024). RA Baruch Bush and Joseph P Folger, The Promise of Mediation: The Transformative Approach to Conflict (Rev edn, Jossey-Bass 2005). |
| Supervisor | Petsche, Markus Aurel |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2025/iobidze_tekla.pdf |
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