When Does an Email Exchange Create a Binding Mediation Settlement?

Procedural posture and result

Appellate review of an order enforcing a settlement arising from post-mediation email communications. The dispute concerned whether the parties had formed a binding settlement under Georgia law and the extent to which mediation-related communications and mediator testimony could be considered. The Eleventh Circuit affirmed enforcement of the settlement.

What happened and what the authority decided

After a nine-hour mediation, counsel continued settlement discussions by email and exchanged the material terms of a proposed resolution. One lawyer proposed terms addressing dismissal, payment, and mutual releases. Opposing counsel revised several terms, after which the first lawyer responded, “We agree to these changes.”

A party later disputed whether the email exchange had created an enforceable settlement.

The Eleventh Circuit affirmed enforcement. Applying Georgia law, the court treated the communications as an offer, counteroffer, and unequivocal acceptance. It also concluded that the emails fell within the mediation agreement's exception for written agreements.

The court further addressed the mediator's permissible testimony. The mediator could testify to whether the mediation had ended and whether a settlement had been reached, but not to confidential bargaining positions or the substance of protected mediation communications.

What this tells the mediator

A settlement can become binding before the parties sign a formal settlement document. Mediators should therefore make clear whether post-mediation communications are tentative proposals, agreement on essential terms, or final assent intended to create an enforceable settlement. The case also reinforces the importance of maintaining mediation confidentiality and limiting any later mediator testimony to matters the governing law or mediation agreement permits.

Practical guidance

• Define the finish line. Explain what the governing law and mediation agreement require for settlement formation.
• Use an end-of-session term sheet. Identify all material monetary and nonmonetary terms before the mediation concludes whenever possible.
• State whether communications are binding. Make clear whether an email or term sheet constitutes a final settlement or remains a proposal subject to signatures or further documentation.
• Confirm settlement authority. Ensure the individuals participating have authority to settle and obtain express assent in the manner required by applicable law.
• Document unresolved terms. If material issues remain open, say so rather than allowing communications to appear final.
• Protect mediation confidentiality. Limit later disclosures and mediator testimony to what applicable law, the mediation agreement, or a court expressly permits.