Georgia public policy favors the compromise and settlement of disputes. To support that policy, evidence rules generally exclude what was said and offered during settlement discussions from being used against a party at trial. The protection has important limits, however, and trial courts in commercial truck accident cases must regularly draw lines between protected negotiation content and admissible evidence that happened to appear in or near a settlement context.
The Governing Statute
The key provision is OCGA Section 24-4-408, titled Compromises and Offers to Compromise. Subsection (a) provides that evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations or mediation is likewise not admissible.
Subsection (b) lists exceptions. The Code section does not require exclusion when the evidence is offered for another purpose, including proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Subsection (c) preserves the basic rule that the section does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation.
The statute is closely modeled on Federal Rule of Evidence 408 and is interpreted in light of federal case law where Georgia precedent is silent, although Georgia courts apply Georgia precedent where it exists.
When the Rule Applies
The protection applies only when there is an actual dispute as to validity or amount. A simple acknowledgment of liability for an undisputed bill is not a compromise and does not become inadmissible merely because the parties discussed payment.
The dispute can be a current lawsuit, a pre-suit demand and response, or a mediation arising from an existing claim. Georgia courts give the term compromise negotiations a practical reading that covers good-faith efforts to resolve a contested matter, including pre-suit demand letters, mediation sessions, and informal back-and-forth between counsel and adjusters.
Statements During Negotiation
The most common protected category is what counsel or a party actually says during a negotiation. Statements about willingness to pay a sum, internal evaluations of weaknesses, or admissions of fault made in the context of trying to settle a dispute are inadmissible to prove liability or the amount of the claim at trial.
The Georgia Supreme Court has clarified the scope of the rule. In a 2023 decision interpreting OCGA Section 24-4-408, the Court addressed whether statements made during settlement discussions could be used to establish punitive damages liability and held that such statements cannot be offered to prove liability for a claim, including a claim for punitive damages. The decision reinforced the broad sweep of the rule.
Mediation Confidentiality
Georgia courts implement the Alternative Dispute Resolution program adopted by the Supreme Court, and Appendix C to the Georgia Supreme Court ADR Rules addresses confidentiality. Confidentiality protection in mediation extends beyond the basic 408 exclusion and includes mediator testimony, with carefully drawn exceptions. Henning Mediation and other ADR providers publish materials describing the layered confidentiality framework.
Independent Evidence Remains Discoverable
Subsection (c) of OCGA Section 24-4-408 makes clear that documents and information are not shielded just because they were discussed during settlement. A maintenance record, an electronic logging device download, or a driver qualification file remains admissible if it would have been admissible without the negotiation. A party cannot insulate evidence by handing it over at a mediation session.
The corollary is that purely negotiation-driven materials, such as a mediator-prepared statement of the parties’ positions or counsel’s settlement brochures, are typically protected.
Permitted Uses Under the Exception
Settlement evidence may be offered for purposes other than proving liability or amount. Recognized exceptions in OCGA Section 24-4-408(b) include the following.
Bias or prejudice of a witness: when a witness has settled with a party or has a financial interest in the outcome, evidence of that settlement may be used to show motive to favor that party. In commercial truck cases, this often comes up when a codefendant or third-party witness has settled and continues to testify.
Negating a contention of undue delay or abuse of process: a party that argues opposing counsel delayed the case may be confronted with evidence of settlement communications that bear on diligence.
Effort to obstruct a criminal investigation or prosecution: extraneous to most civil truck cases but recognized.
High-Low Agreements and Mary Carter Arrangements
Plaintiffs sometimes enter agreements with one defendant to set a guaranteed minimum or cap on recovery while continuing to try the case against other defendants. Georgia treats so-called Mary Carter agreements and similar arrangements as subject to disclosure under specific case law and the rules of evidence, because the agreements may affect the credibility of testimony from the settling defendant. The Georgia Supreme Court and Court of Appeals have addressed disclosure obligations for high-low and similar agreements.
Offer of Judgment Statute
A different statute, OCGA Section 9-11-68, governs offers of settlement. Once a written offer is properly served and rejected, it can produce attorney’s fee shifting consequences if the eventual judgment is sufficiently more or less favorable than the offer. The offer of settlement itself is not admitted as substantive evidence at trial. The mechanism is procedural and is governed by the statute’s specific requirements on timing, form, and content.
Pre-Suit Demand Letters
Georgia recognizes a pre-suit time-limited demand procedure under OCGA Section 9-11-67.1, which addresses the form and content of demands in motor vehicle and similar tort cases for which liability insurance coverage is at issue. The statute governs the process for accepting or rejecting the demand. Whether the contents of a demand letter are admissible at trial depends on the purpose for which they are offered, with OCGA Section 24-4-408 applying to bar use of the letter to prove liability or amount.
Practical Trial Practice
Trial judges in Georgia routinely issue motions in limine rulings excluding mention of settlement negotiations before counsel begin opening statements. Witnesses are instructed not to refer to negotiations on the stand. When a question or answer comes close to the line, the court may give a curative instruction, and in rare cases a mistrial may result. Parties typically agree on a stipulation reciting that any settling defendants are no longer in the case without identifying the terms.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
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