Williams v. Rent 2 Own Trailers, L.L.C., No. 25-20352, 2026 WL 1759286 (5th Cir. June 18, 2026) (per curiam) (unpublished) | Weissman v. Cheokas, No. 23-12527, 2026 WL 1759431 (11th Cir. June 18, 2026) (not reported in Fed. Rptr.) | Fazel v. Pete Fowler Construction Services, Inc., ___ Cal. Rptr. 3d ___, 2026 WL 1803124 (Cal. Ct. App. June 23, 2026)

Mediation · Confidentiality · Enforcement of Mediated Settlements · Pre-Suit Mediation Clauses · Litigation Privilege

Introduction and Executive Summary

Mediation runs on two promises. What’s said in the room stays there, and what’s agreed at the end of the day ends the dispute. Both get tested after the deal, when one side wants out or wants more, and in June 2026, three courts tested them from different directions. On June 18, 2026, in Williams v. Rent 2 Own Trailers, L.L.C. (Williams), the Fifth Circuit vacated a dismissal that had enforced a pre-suit mediation clause, holding that the party invoking the clause had waived it. The same day, the Eleventh Circuit held in Weissman v. Cheokas (Weissman) that a mediation agreement making “all communications of the parties in the mediation” confidential didn’t keep a court from reading the emails in which counsel settled the case at the close of the session, and it affirmed enforcement of that settlement. And on June 23, 2026, in Fazel v. Pete Fowler Construction Services, Inc. (Fazel), a California Court of Appeal held that the litigation privilege barred a homeowner who settled on the strength of her opponent’s expert report, prepared for mediation, from suing the expert when the repairs failed.

Background Facts

Williams: the clause no one invoked

Ahmad Williams leased two food-truck trailers from Rent 2 Own Trailers, L.L.C. (R2O) under leases requiring that disputes “be settled first by good faith mediation.” After he sent a demand letter, R2O repossessed the trailers rather than seek mediation. Williams at *1.

Williams’s June 15, 2023, demand letter followed R2O’s alleged failure to renew the trailers’ registration and tags. Williams, appearing pro se, sued in the Eastern District of Pennsylvania in January 2024, and the case was transferred to the Southern District of Texas under the leases’ forum-selection clause. Once the case was in Texas, R2O moved to dismiss on a long list of grounds. Among 30 pages of argument was one about the leases’ mediation clause: without citing any authority, R2O argued that the clause made mediation a “condition precedent” to suit, so Williams’s case was premature. The district court didn’t explicitly adopt the condition-precedent theory. It instead “erroneously treated Defendants-Appellees’ mediation argument as unopposed and assumed, without analysis, the clause was specifically enforceable.” Williams at *1.

The district court dismissed without prejudice pending mediation. In an unpublished per curiam opinion on its summary calendar, the Fifth Circuit held that R2O had waived the obligation to mediate, vacated the judgment and remanded. Williams at *1–2.

Weissman: the emails at the close of the day

Mark Weissman and Michael Cheokas had litigated over a 2006 aircraft-asset foreclosure for years when they mediated in June 2023 under a Mediation Agreement that made mediation communications confidential but excepted “any written agreement made and executed by the parties as a result of the mediation.” Weissman at *1–2.

The June 12, 2023, mediation lasted nine hours. At the close of the session, Weissman’s counsel emailed proposed terms: dismissal of all claims, payment of $34,250 within ten business days, and mutual releases. Cheokas’s counsel replied with revisions: dismissal with prejudice, payment within fourteen business days, and carve-outs from the releases for sanctions and fee requests. Minutes later, Weissman’s counsel wrote back, “We agree to these changes.” The next morning, Weissman’s counsel told the district court that “as a result of the mediation,” the parties anticipated a dismissal with prejudice. Weissman at *2.

Within days, Weissman took the position that there had been no “meeting of the minds.” At an evidentiary hearing, his counsel argued that the Mediation Agreement barred the emails and any mediator testimony and that enforcement required a formally signed document. The mediator testified that “the matter was resolved in [his] opinion,” that the emails memorialized the terms, and that he typically requires “some kind of documentation” because parties often lack time to execute a formal written agreement. Weissman’s counsel didn’t cross-examine him or present evidence. Id. at *2–3.

The district court enforced the settlement and sanctioned Weissman’s counsel under 28 U.S.C. §1927. The Eleventh Circuit affirmed in an opinion Westlaw lists as not reported in the Federal Reporter. Id. at *3, *8.

Fazel: the report behind the settlement

Maryam Fazel sued her neighbor over water intrusion from his property. The neighbor retained Pete Fowler Construction Services, which inspected both properties and wrote an expert report recommending repairs. Fazel acknowledged on appeal that the report “was prepared for mediation purposes.” She accepted the recommendations, the neighbor’s contractor did the work, and she settled for $8,250. When heavy rains came, her property flooded again, and she sued Fowler for negligence and, as a third-party beneficiary, for breach of contract. Fazel at *1, *3.

An anti-SLAPP motion disposed of four of her six counts against Fowler, but not the negligence and third-party-beneficiary counts, which the trial court found arose from conduct rather than statements. The Court of Appeal affirmed that ruling in an earlier appeal without deciding whether the litigation privilege barred those counts on the merits. On remand, the trial court held that it did and granted judgment on the pleadings for Fowler under the litigation privilege, California Civil Code §47(b). Id. at *1–2.

Legal Analysis

1. Williams: waiver of a pre-suit mediation clause

• In Williams, the obligation to mediate ran both ways. The Fifth Circuit noted that it “has not addressed how a pre-dispute mediation clause should be interpreted or what remedies a court may properly impose for its purported breach,” and it didn’t decide those questions. It decided waiver. The clause called for mediation within 30 days’ notice of a dispute. R2O didn’t urge mediation in that window, repossessed instead, and raised the clause only after suit, “by characterizing the clause as a barrier to suit, not as a means to settle with Williams.” Williams at *2.
• Litigation conduct compounded the waiver. R2O didn’t raise mediation during the year the case sat in Pennsylvania. Twenty days after moving to dismiss on the clause, it joined a case management plan reporting that the parties were “at wide odds” and that court mediation is often effective, and then didn’t ask for one. The court reasoned that the clause contemplated “an efficient and collaborative endeavor to resolve disputes,” and that R2O, having failed to pursue it, “should not now be heard to complain that Williams did the same.” Id.
• Arbitration law didn’t fill the gap. R2O relied on cases applying the Federal Arbitration Act (FAA). The court called them inapposite, citing the Eleventh Circuit’s decision in Advanced Bodycare Solutions, LLC v. Thione International, Inc., 524 F.3d 1235, 1238–40 (11th Cir. 2008), which found mediation to fall outside the scope of the FAA. Williams at *2 n.5.

2. Weissman: the confidentiality clause and the settlement emails

• In Weissman, the confidentiality clause meant what it said, including its exception. Applying Georgia’s plain-meaning rule, the Eleventh Circuit found the Mediation Agreement unambiguous. It separated “communications . . . in this mediation,” which were confidential, from “any written agreement made and executed . . . as a result of the mediation,” which could be used in any relevant proceeding. The emails fell in the second category. “The exchange was not a separate negotiation, but the written memorialization of the mediated settlement.” Weissman at *4.
• An email exchange can be an agreement “made and executed.” Weissman argued that enforcement required a formally signed document. The court relied on Georgia authority treating attorney correspondence that memorializes agreed terms as sufficient, including Brumbelow v. Northern Propane Gas Co., 308 S.E.2d 544, 547 (Ga. 1983), and on the Georgia Supreme Court’s holding that emails with definite terms bearing counsel’s names can satisfy the statute of frauds, State v. Federal Defender Program, Inc., 882 S.E.2d 257, 272–75 (Ga. 2022). Because the emails “resulted from, and consummated, the mediation process,” they fell within the exception. Weissman at *4–5.
• The mediator could say that the case settled. The court held that the mediator’s testimony fell within the disclosures the Georgia Uniform Mediation Act permits, O.C.G.A. §9-17-6(b)(1), which include whether a settlement was reached. His testimony “did not reveal any confidential bargaining positions” and addressed only whether an agreement was reached and completed, which the clause didn’t cover. Id. at *5.
• Mutual assent was measured objectively, from the writing. The emails were “a textbook example of an offer, a counteroffer, and an unequivocal acceptance,” and the mediator’s testimony and Weissman’s own subsequent email to the court corroborated them. A later disagreement over the sanctions carve-out, which the counteroffer had addressed, didn’t undo assent to the essential terms. Id. at *6.
• Contesting the deal had a cost, but only after the argument had been rejected. The district court didn’t treat counsel’s initial refusal to acknowledge the settlement as sanctionable. It sanctioned “repeated filings advancing the same position after rejection,” which the Eleventh Circuit agreed “went beyond reasonable advocacy and objectively impeded resolution.” Id. at *7–8.

3. Fazel: the litigation privilege and the opposing expert’s report

• The case reached the court on the litigation-privilege argument, not on mediation confidentiality. On remand from the earlier anti-SLAPP appeal, Fowler moved for judgment on the pleadings on the ground that the litigation privilege, California Civil Code §47(b), barred the remaining claims on the merits, and Fazel’s appeal challenged only that ruling. Fazel at *2. The two doctrines address different issues. The litigation privilege is an absolute immunity from derivative tort liability for communications made in judicial proceedings, meant to give litigants and witnesses “the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” Id. (quoting Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990)). California’s mediation-confidentiality statutes, Evidence Code §§1115–1128, govern what is said or written for a mediation by making it inadmissible and protected from disclosure; they don’t create an immunity from suit. The opinion doesn’t discuss mediation confidentiality at all. It mentions mediation only in noting Fazel’s acknowledgment that the report “was prepared for mediation purposes.” Id. at *3.
• In Fazel, the expert’s work was protected because it only existed to be communicated during the mediation. The litigation privilege extends to noncommunicative acts “necessarily related to” a communication. Under Rusheen v. Cohen, 37 Cal. 4th 1048, 1065 (2006), “unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.” Fazel framed her claims around Fowler’s “formulation” of the repairs. The court answered that “[t]he whole point of formulating repairs was to include them in an expert report (a communication) prepared in the course of litigation,” and that the formulation couldn’t cause harm until the report reached her. Fazel at *3.
• The court distinguished a case about physical conduct. Fazel relied on Mero v. Sadoff, 31 Cal. App. 4th 1466 (1995), where an employer’s examining physician allegedly aggravated a workers’ compensation claimant’s back injury. The court found Mero distinguishable: Fowler’s work was part of the testimonial process, and Fazel’s injury came from the report itself. Fazel at *3.
• Fazel puts the time to test an opposing expert’s work before the settlement. The court noted that Fazel could have hired her own expert, negotiated additional repairs or kept litigating. “Fazel’s opportunity to challenge the recommendations in Fowler’s expert report was in the previous lawsuit, not in a derivative lawsuit.” Id. at *3. Fazel argued that a report prepared for her opponent shouldn’t have been used as a repair design at all. The court “flatly reject[ed] the notion that a retained expert has a duty to ensure that the opposing party does not rely on its expert report,” and described the case as “ultimately about Fazel’s decision, during the course of litigation, to rely on the opposing party’s expert report despite the obvious risk of bias.” Id. at *4.

Holding

Williams: Vacated and remanded in part, dismissed in part. R2O waived the leases’ pre-suit mediation obligation, so the dismissal pending mediation couldn’t stand. The court dismissed the appeal to the extent it challenged the Pennsylvania court’s transfer order, which only the Third Circuit could review. Williams at *1–2.

Weissman: Affirmed. The Mediation Agreement’s confidentiality provision didn’t bar the post-session settlement emails, which fell within its exception for written agreements made and executed as a result of the mediation, or the mediator’s testimony that a settlement was reached. The emails formed an enforceable settlement under Georgia law. The court also affirmed the §1927 sanctions against Weissman’s counsel and the denial of leave to amend. Weissman at *8.

Fazel: Affirmed. Because Fowler’s formulation of the repairs was an act necessarily related to a communicative act, its expert report, made in the course of a judicial proceeding, the absolute litigation privilege under California Civil Code §47(b), barred Fazel’s negligence and third-party-beneficiary claims. Fazel at *4.

What to Watch

• Precedential weight. Williams states that it “is not designated for publication” under Fifth Circuit Rule 47.5, so it isn’t binding Fifth Circuit precedent. Weissman is a signed opinion issued after oral argument, but Westlaw lists it as not reported in the Federal Reporter. Fazel carries a Cal. Rptr. 3d placeholder on Westlaw.
• The questions Williams left open. The Fifth Circuit still hasn’t said how a pre-dispute mediation clause is interpreted or what remedy fits its breach. A case in which the invoking party pressed for mediation promptly after notice would present those questions directly.
• Mediation agreements drafted with Weissman in view. The outcome turned on the specific wording of the exception for written agreements “made and executed” as a result of the mediation, read under Georgia law. Agreements drafted differently, or governed by other law, may be read differently. The bottom line: check and cite your own jurisdiction’s law regarding mediation confidentiality, and if you want a higher degree of protection, be sure to specifically define it in the agreement.
• What Fazel doesn’t address. The opinion rests entirely on the litigation privilege. It doesn’t discuss California’s mediation-confidentiality rules, and it doesn’t address the anti-SLAPP counts resolved in the earlier appeal or the claims against the contractor and the neighbor.

What This Means for Mediating Disputes

Each of these cases came down to something that was settled before anyone reached the courthouse: the 30 days after a demand letter, the words of a confidentiality clause, or the sequence of an email exchange. Williams is about the clause that sends parties to mediation in the first place. A pre-suit mediation provision is a commitment to try to resolve a dispute early, and a party that skips that step when the dispute arises may find that the clause no longer works as a bar to suit. In Weissman, the mediation agreement drew a line between what parties say in the session and what they sign or send as a result of it, and the court enforced that line as written. A short exchange of terms at the end of a long day, with an unequivocal acceptance, was enough to end years of litigation, and the mediator’s role afterward was limited to confirming that a deal had been reached. The narrower the gap between what the parties agreed in the room and what they put in writing before they left, the less there was for a court to resolve.

Fazel moves the risk of a failed fix to the front end. A settlement based on the other side’s expert work can efficiently close a property or construction dispute. But under the litigation privilege, the court tests that work in the original lawsuit, not afterward, and it pointed to the tools Fazel had before she settled: her own expert, negotiation over additional repairs, or continued litigation. In all three cases, the courts treated mediation as something parties do rather than something they hold in reserve and gave effect to what they did.

John Libby is an arbitrator, mediator, and settlement counsel with LibbyADR LLC. This post contains his own summaries of the decisions discussed, prepared for general informational purposes only. The summaries are not intended to be a complete statement of any court’s reasoning, nor should they be taken to indicate how he would rule as an arbitrator in any particular case. In addition, the summaries are not legal advice, nor should they be construed as legal advice. Readers should not act on these posts, but should review the decisions themselves and consult with legal counsel.