WHAT IF A PARTY THOUGHT MEDIATION TALKS WERE ONLY PROVISIONAL?

Procedural posture and result

Appellate or judicial review concerning enforcement of an alleged oral mediation settlement when assent and counsel’s authority were disputed. RESULT: The Ohio Eleventh District Court of Appeals reversed enforcement. The record did not clearly and convincingly establish acceptance or a meeting of the minds, and it did not show authority to bind the absent plaintiff. Mediation privilege also limited inquiry into the negotiations.

What happened and what the authority decided

Following a Zoom mediation, one side asserted that the parties had orally accepted an $8,000 settlement. One plaintiff said she understood the discussions as provisional until she signed; the other plaintiff had not attended, and the record did not show that he authorized counsel to bind him.

The Ohio Eleventh District Court of Appeals reversed enforcement. The record did not clearly and convincingly establish acceptance or a meeting of the minds, and it did not show authority to bind the absent plaintiff. Mediation privilege also limited inquiry into the negotiations.

What this tells the mediator

A mediator’s report that a case settled may not cure uncertainty about actual assent, material terms, or authority. The close of the session should create reliable evidence without exposing confidential bargaining.

Practical guidance

• Confirm who must personally assent and who has settlement authority.
• Do not assume counsel can bind an absent client without verified authority.
• Ask whether oral assent is intended to be immediately binding.
• Use a signed term sheet that records every material term.
• Describe unresolved negotiations accurately in any authorized mediator report.