By Neta, founder of SortMyDivorce · Updated
If you have read that marking a letter "without prejudice" protects it, you have almost certainly read something written for Canada, the UK or Australia. In the United States it does considerably less than that. This guide is for the United States. The position in Canada is materially different and materially broader. See the companion Canadian guide.
| What "without prejudice" usually means in the US | Something else entirely — a case dismissed without prejudice can be refiled. That is the dominant American usage of the phrase. |
|---|---|
| Does the label protect a settlement letter? | Not by itself. It has no independent legal effect. Checked 19 Aug 2026. |
| What does the work instead | Federal Rule of Evidence 408 and state analogues. |
| What Rule 408 is | An admissibility rule, not a privilege. |
| Does the rule's text use "without prejudice"? | No. The phrase appears only in the advisory committee notes. |
| Is there a settlement privilege in the US? | Mostly no. US courts have largely rejected one; the Sixth Circuit (KY, MI, OH, TN) is the notable exception, and even there it is narrower than Canada's. |
| Can settlement talks be discovered? | Often yes. Rule 408 addresses admissibility at trial, not pretrial discovery. |
| What is usually stronger | Mediation confidentiality, which is a separate and generally broader protection under state law. |
| Divorce is a state matter | FRE 408 is a federal rule. Your case is governed by your state's analogue. Check yours. |
Keeping track of dates like these across a stack of letters is exactly what SortMyDivorce does — start a free trial, no card needed.
Start with the confusion, because it causes real problems.
In American legal usage, "without prejudice" overwhelmingly refers to dismissal. A case dismissed without prejudice can be brought again; a case dismissed with prejudice cannot. That is what an American lawyer, and an American search engine, will assume you mean.
The correspondence usage — heading a settlement letter "without prejudice" so it cannot be used against you — is Commonwealth practice. It is standard in Canada, England, Australia and New Zealand, where it invokes a genuine legal doctrine. It is not standard here, and where it does appear on American correspondence it is largely stylistic.
Some US family lawyers use it anyway, as belt and braces or because it reassures clients. That is harmless. What is not harmless is believing it does something it does not.
The operative provision in federal court is Federal Rule of Evidence 408, and most states have an analogue that is similar but not identical.
Rule 408(a) provides that evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim, or to impeach by a prior inconsistent statement or a contradiction:
"(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim…"
Rule 408(b) then preserves other uses:
"The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution."
Read that carefully, because three things follow that most people get wrong.
First, this is a rule about what a court may admit. It is not a privilege. It does not stop material existing, being seen, or being used for a purpose other than proving the claim.
Second, the protection is purpose-limited. Evidence excluded for one purpose can come in for another. The list in 408(b) is expressly illustrative — "such as" — not exhaustive.
Third, the phrase "without prejudice" appears nowhere in the rule. It shows up only in the advisory committee notes, and only in the sense that a declarant may protect a statement by expressly stating it is hypothetical or made without prejudice. That is a drafting suggestion, not a doctrine.
This is the part that surprises people most, and it is the single most important practical difference from Canada.
Rule 408 governs admissibility at trial. It does not address pretrial discovery.
US courts have largely declined to recognise a broad settlement privilege. The Sixth Circuit — Kentucky, Michigan, Ohio and Tennessee — is the notable exception, and even there the protection is narrower than the Canadian equivalent, extending to "communications made in furtherance of settlement" while leaving completed agreements and settlement amounts "fair game for discovery and admission in evidence."
The comparative position has been put concisely: Canada limits all access to settlement evidence; the United States only limits the admissibility of such evidence, and even then for certain limited purposes.
The practical consequence: settlement communications in a US matter can often be discovered even where they could not be admitted. If you have been proceeding on the basis that a settlement letter can never be seen by anyone, that assumption does not hold here.
If you want your settlement discussions genuinely protected in a US divorce, the mechanism is usually not Rule 408 at all.
Most states have specific statutory protection for mediation communications, and it is generally broader than 408 — often reaching discovery as well as admissibility, and often binding the mediator too. Roughly a dozen states have adopted a version of the Uniform Mediation Act; California's provision (Evidence Code § 1119) is among the strongest and is well known for how strictly it has been applied.
The protection varies substantially by state, including on the exceptions and on whether it can be waived. This is a question to ask your lawyer before mediation, not after — and it is a reason to route difficult conversations through a mediation process rather than open correspondence, where the protection allows.
Verification note. The specific statutes named in this section — Cal. Evid. Code § 1119 and the number of Uniform Mediation Act states — were not independently verified in the preparation of this guide. The general proposition that mediation confidentiality is a distinct and typically broader protection than FRE 408 is well established. Confirm the position in your state before relying on it.
None of this makes settlement correspondence unimportant. It changes what you should assume about it.
Assume it may be seen. Write, and instruct your lawyer to write, on the basis that a settlement letter could end up in front of someone. That is a good discipline anyway.
Do not treat the label as protection. If a letter arrives headed "without prejudice", that tells you what it is for. It does not tell you it is sealed.
The deadlines are still real. A settlement letter can contain a response deadline, an offer with an expiry, or a disclosure request. The evidentiary status of the letter has nothing to do with whether you need to act on it.
Keep the record. What was proposed, when, in what words, and how it differs from the previous round. That is useful regardless of what is ultimately admissible.
Check your own state's rule. Divorce is a state matter and FRE 408 is a federal rule. Your state's analogue may differ in scope, and some differ meaningfully.
Verification note. The specific statutes named in this section — Cal. Evid. Code § 1119 and the number of Uniform Mediation Act states — were not independently verified in the preparation of this guide. The general proposition that mediation confidentiality is a distinct and typically broader protection than FRE 408 is well established. Confirm the position in your state before relying on it.
Verification notes. 1. The Sixth Circuit position and the Goodyear citation are drawn from the Torys analysis rather than from the decision itself. 2. The mediation confidentiality section names statutes that were not independently verified for this guide. Treat it as a signpost to a question for your lawyer, not as a statement of your state's law. 3. State analogues to FRE 408 vary and are not catalogued here.
Not by itself. In the United States the label has no independent legal effect. Whatever protection exists comes from Rule 408 or your state's analogue, and turns on the nature of the communication rather than the heading.
Possibly, depending on the purpose. Rule 408 blocks their use to prove or disprove the validity or amount of a claim, but it expressly permits other uses, and it does not govern whether the material can be obtained in discovery. This is a question for your lawyer on your specific facts.
Usually yes, and usually more protective. Most states have specific mediation confidentiality statutes that are broader than Rule 408. Ask your lawyer what applies in your state before the mediation, not after.
FRE 408 is federal. Divorce is state. Almost every state has an analogue, and most closely track the federal rule, but they are not identical and the differences can matter. Check yours.
Yes — but narrowly, and less than in Canada or the UK. Rule 408 provides real protection against the most damaging use, which is having your own concession produced as proof of what you owe. It does not make settlement talks confidential in the way the phrase suggests to a non-lawyer.
Last reviewed August 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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