Mediators Better Know How To Contract

14th Dist.] 2005, no pet.). Generally, acceptance of an offer must be communicated to the offeror for a contract to be binding. Id. at 26. Thus, silence does not ordinarily indicate acceptance of an offer. See id. (citing Restatement (Second) of Contracts § 69(1) cmt. a (1981)); see also Tex. Ass'n of Counties County Gov't Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128, 132 (Tex.2000) (noting that “as a general rule, ‘silence and inaction will not be construed as an assent to an offer’ ” (quoting 2 Williston on Contracts § 6:49 (4th ed.1991))).

In this case, Levine was the only attorney who spoke with LLG and Sigmon about scheduling the mediation. In his affidavit, Levine does not indicate that, before Sigmon agreed to mediate the underlying dispute, Levine communicated either Levin's mediation fee or cancellation/rescheduling charges. The parties agree that these terms were communicated to Sigmon after the mediation was scheduled. Thus, the fact that Sigmon agreed to mediate the dispute does not support an inference that Sigmon agreed to the mediation rules or cancellation fees. See Advantage Physical Therapy, Inc., 165 S.W.3d at 25 (acceptance must be in strict compliance with terms of offer).

In fact, Sigmon presented uncontroverted affidavit evidence that he never entered into an agreement to mediate the underlying suit under the terms and conditions specified by the letters from LLG, the mediation request form, or the mediation rules form. The only evidence LLG specifies to support its claim of an oral agreement to mediate under the written terms it provided is Sigmon's “lack of objection” to these terms, i.e., Sigmon's silence, after LLG faxed the written terms to him. But silence rarely indicates acceptance of an offer. See id. at 26; see also Tex. Ass'n of Counties County Gov't Risk Mgmt. Pool, 52 S.W.3d at 132; Restatement (Second) of Contracts, § 69(1) (noting that assent may be inferred “