The Rules Have Changed: How Senate Bill 68 Is Reshaping Mediation in Georgia
I’ve sat at the head of the mediation table long enough to know when the rules of the game change. Governor Kemp’s signature on Senate Bill 68 on April 21, 2025 changed them — profoundly. Not just for trial, but for every mediation session happening right now in Georgia.
The conversation in the defense bar has understandably focused on what SB 68 does at trial: the bifurcation option, the phantom damages reform, the anti-anchoring rule. Those are real and important. But what I’m watching from the mediator’s chair is something slightly different. I’m watching how SB 68 has already begun restructuring the opening offer, the negotiation range, the timing of settlement conversations, and the expectations each side carries into the room. Some defense lawyers have adapted quickly. Others haven’t yet realized the math has changed beneath them. This article is for both groups.
The Old Math vs. The New Math on Medical Damages
For years, the starting point of any bodily injury mediation in Georgia was the medical bills — specifically, what was billed. Under the old collateral source rule, plaintiffs could present the full sticker price of their medical care, even if insurance had negotiated that amount down to a fraction of what was actually paid. A $400,000 hospital bill remained a $400,000 data point in mediation, regardless of whether the insurer paid $85,000 to settle it. That anchored the plaintiff’s demand, inflated the range, and forced defense counsel to negotiate against a number that had no real-world economic tether.
SB 68 severs that tether for post-April 21, 2025 claims. Under the amended framework, recovery for medical expenses is limited to the reasonable value of medically necessary care rather than automatically permitting recovery of amounts originally billed but later written off. The statute also significantly expands the evidence available to both sides in establishing that reasonable value, including evidence concerning amounts paid, amounts remaining owed, contractual adjustments, reimbursement obligations, and other factors bearing on the actual market value of the medical care.
For defense counsel mediating a post-SB 68 case, this is a structural shift in your favor. The inflated billed amount is no longer the gravity well pulling the entire negotiation upward. In cases with substantial medical specials, this can meaningfully compress the economic damages range — and compression in the economic damages range tends to compress the noneconomic range that rides on top of it.
That said, this reform applies only to causes of action arising on or after April 21, 2025. Which brings us to the most underappreciated complication on any Georgia docket right now.
The Retroactivity Split: Two Valuation Universes on the Same Docket
If you’re managing a docket of pending cases, you are living in two legal universes simultaneously — and you need to know which universe each case inhabits before you walk into mediation.
For pre-April 21, 2025 claims (injury date before the effective date), the old phantom damages rule applies. Plaintiffs can still anchor to billed amounts. The negligent security foreseeability standard is the pre-SB 68 standard. The seatbelt admissibility rule doesn’t apply. These cases are governed by the law as it existed when the cause of action arose — and the plaintiff’s lawyer knows it.
For post-April 21, 2025 claims, the new phantom damages standard applies, the new negligent security framework applies, and seatbelt non-use can now come in as evidence going to comparative fault, causation, and apportionment.
Several procedural reforms, including bifurcation, the anti-anchoring provisions, discovery stays during motions to dismiss, limits on voluntary dismissal, and revisions to Georgia’s attorney-fee framework, were enacted to apply to pending cases. As with many significant procedural reforms, however, the precise scope of their retroactive application may ultimately continue to be shaped by appellate decisions.
The practical consequence at mediation is that you cannot run a one-size-fits-all damages analysis across your docket. A $250,000 medical bill case filed in February 2025 has a fundamentally different valuation ceiling than a materially identical case filed in June 2025. If your reserve-setting process hasn’t been recalibrated to reflect which rules govern which case, you’re working with bad numbers — and bad numbers at mediation produce bad outcomes.
How the Anti-Anchoring Rule Changes Opening Demands and Negotiation Range
The anti-anchoring provision deserves particular attention because its effects at mediation are not always obvious at first.
Under SB 68, counsel is prohibited from suggesting specific dollar amounts for noneconomic damages — pain and suffering, emotional distress — until after the close of evidence at trial. Moreover, any noneconomic damages argument must be “rationally related” to the facts of the case. Gone is the tactic of throwing a nine-figure number at the jury in opening statement, letting it marinate for days, and then suggesting it during closing. Anchoring to an arbitrary large number — a technique with well-documented psychological effects on jury decision-making — has been substantially curtailed.
This matters at mediation for a reason that isn’t immediately intuitive: plaintiff’s counsel knows this rule now governs what they can do at trial. The trial anchor that used to justify a stratospheric opening demand has been weakened. A plaintiffs’ lawyer who previously opened at $10 million because they planned to anchor the jury at $15 million during trial now has to think harder about what that opening at mediation is actually justified by. In practical terms, the anti-anchoring rule may reset the evidentiary foundation supporting aggressive noneconomic demands at mediation.
What this doesn’t mean is that pain and suffering claims have gone away or that plaintiffs will automatically open lower. Plaintiff’s counsel can still suggest a specific number during closing argument — the rule constrains when and how, not whether. Experienced plaintiffs’ lawyers are already adapting their trial strategy. At mediation, they may anchor differently: more emphasis on liability clarity, more focus on economic damages documentation, less reliance on the nuclear verdict shadow as settlement leverage.
For defense counsel, the correct response is not simply to hold a harder line on noneconomic damages. The correct response is to understand that the credible trial range has shifted, and to make sure your client’s authority reflects that shift. An insurer that loaded reserves in 2023 based on pre-SB 68 jury verdict expectations needs to revisit those reserves against the post-SB 68 trial landscape. Stale reserves are one of the most common reasons mediations collapse.
Bifurcation: New Leverage, New Timing Pressure
The bifurcation provision — which applies retroactively to all pending cases — gives either party the right to request separate trial phases for liability and damages. In phase one, the jury decides fault. In phase two, if the defendant loses, the same jury hears damages.
For defense counsel, bifurcation is a double-edged tool at mediation. On one hand, the option creates real litigation leverage: a defendant with strong liability defenses can now credibly threaten a phase-one focused trial where the sympathetic plaintiff never gets to testify about their suffering until after the jury has already found — or not found — the defendant at fault. That changes the plaintiff’s risk calculus and can make a pre-trial settlement more attractive.
On the other hand, bifurcation means longer trials. Witnesses come back. Jurors are reconvened. Defense clients — particularly corporate defendants or insurers with exposure across multiple cases — should be realistic about the resource implications of a bifurcated trial strategy before using it as bluster in mediation. Plaintiff’s counsel has read the same statute and knows when the threat is credible.
One timing note: requests for bifurcation must be made sufficiently in advance of trial. If you’re entering mediation in a case where bifurcation is a legitimate strategic option, defense counsel should have already considered and communicated that position internally. Walking into a mediation without a clear view of whether you’re actually going to request bifurcation — and what it would mean for the case if you did — is a missed opportunity.
What This Means at the Mediation Table
From where I sit, SB 68 has created a discrete set of mediation dynamics that weren’t present before April 2025.
Know your universe before you come. The effective date split creates two different valuation frameworks. The single most important preparation step is correctly identifying which rules govern the case and building a damages analysis accordingly. Bring that analysis to mediation — don’t just know it, be able to explain it, because the split may not be obvious to all decision-makers in the room.
Recalibrate reserves against the new trial landscape. SB 68 has changed what a jury can hear, when they can hear it, and how economic damages are calculated. Reserves set before April 2025 may not reflect this new reality. An insurer walking into mediation with authority based on pre-reform verdict comps is negotiating against last year’s market. Defense counsel who can’t move within realistic authority because reserves are stale are the ones who blow up settlements that should have closed.
Use the offer-of-settlement statute thoughtfully. SB 68 strengthened Georgia’s offer-of-settlement statute by expanding the circumstances under which a prevailing defendant may recover attorney’s fees and litigation expenses following a rejected qualifying offer. A defendant who makes a qualifying offer may recover those expenses if the plaintiff ultimately recovers less than 75 percent of the offer, or if the defendant obtains a defense verdict. This can become meaningful settlement leverage, but only if the offer is timed strategically. Mediation is often where that timing decision crystallizes.
Expect plaintiff’s counsel to fight the retroactivity. Constitutional challenges to retroactive application of certain SB 68 provisions are coming. In cases where retroactive provisions are outcome-determinative — particularly bifurcation in high-exposure cases — plaintiff’s counsel may argue retroactive application violates due process or vested rights principles. Georgia’s appellate courts have not yet provided definitive guidance on many of these retroactivity questions. Defense counsel should treat “the anti-anchoring rule applies to your case” as a position, not a closed question.
The defense lawyers adapting most successfully to SB 68 are not simply citing the statute during mediation. They’re arriving with recalibrated reserves, a clear understanding of which provisions govern their particular case, and a damages analysis they can explain persuasively to both the adjuster and opposing counsel. SB 68 changes the legal framework. Preparation determines whether that framework becomes an advantage.
Practical Takeaways for Defense Counsel
Conduct an SB 68 audit of your docket before your next round of mediations. Separate pre- and post-April 21, 2025 claims and apply the correct valuation rules to each.
Update reserves considering the new phantom damages framework, the anti-anchoring constraint on trial exposure, and revised Georgia verdict comps as they emerge post-reform. Don’t mediate against stale numbers.
Decide before mediation whether bifurcation is a genuine strategy or a negotiating posture. Both have a place — but they’re different positions and conflating them weakens your credibility with opposing counsel.
Treat the offer-of-settlement mechanism as a litigation planning tool, not an afterthought. Know before mediation whether you’re deploying it if the case doesn’t settle.
Stay calibrated on retroactivity disputes. Where constitutional challenges to SB 68’s retroactive provisions are live, they belong in your risk analysis — not as a concession to plaintiff, but as an honest accounting of litigation uncertainty.
SB 68 represents the most significant recalibration of Georgia tort litigation in a generation. Its ultimate contours will continue to develop through appellate decisions, but its practical effects are already reshaping mediation. Lawyers who understand how the reforms alter valuation, leverage, and trial risk will negotiate from a stronger position. Those who approach today’s mediations with yesterday’s assumptions may find that the room has already moved without them.
The table has changed. The question is whether you changed with it.