Put Down the Tape Recorder and Step Away; Your Rule 69 is No Good Here

by Annette Burns on March 27, 2010

Note:  Although this decision was originally a published opinion, the Court of Appeals de-published it later in 2010.

"If this challenge to the Rule 69 agreement were sufficient, there really would not be a Rule 69 agreement that was much worth the paper it was printed on."

With that pronouncement, a Superior Court judge approved an agreement recited on to a tape recorder at the end of a day of mediation in a family court case. The mediator, who was also a judge pro tem in good standing with the Superior Court, asked both parties questions on the tape recording. The questions included things like "Did you hear and understand the terms of the settlement; are they fair and equitable? Did you receive sufficient disclosure to make an informed decision? Did anyone threaten you or coerce you to enter into the agreement? Do you want to be bound by the terms of the agreement?" Having received "yes" answers from the parties (a "no" answer in the case of the threat question), the mediator then made a finding, as judge pro tem, that the terms of the agreement were binding pursuant to Rule 69, Arizona Rules of Family Law Procedure.

After one party decided later to try and back out of the agreement, the trial court judge then reviewed the tape recording and the agreement itself, and made the statement at the top of this post. This agreement was pretty much airtight and binding, right?

Wrong.

In Reeder v. Johnson (March 23, 2010; 1 CA-CV 09-0247), the Court of Appeals found that an agreement purportedly made pursuant to Rule 69 was not binding against a party who later wanted out of the agreement, because Rule 69 does not permit such an agreement to be recited to a mediator. And even though this mediator was also a judge pro tem, he did not qualify as a judge pro tem for the application of this Rule, because he was not assigned as a pro tem for this particular case.

Despite what appears to be everyone's efforts to make a binding agreement, and despite the parties' joint recitations that they heard, understood and wanted to be bound by their dictated agreements, there was a loophole. The loophole means there was no binding agreement under Rule 69, so a party could repudiate the agreement.

Rule 69, in its present form*, states:

Agreements between the parties shall be binding if they are in writing or if the agreements are made or confirmed on the record before a judge, commissioner, judge pro tempore, court reporter, or other person authorized by local rule or Administrative Order to accept such agreements.

What was the problem? Was this agreement on the record? Yes, based on the Committee Comment to Rule 69. A tape recorder is explicitly approved as a form of "record", based on ARS §38-424.

Was the agreement stated before an "authorized person" under the Rule? Therein lay the problem. While the mediator who had conducted the mediation was a judge pro tem, he was not a judge pro tem who had been assigned by the Presiding Judge to handle that particular case on that particular day.    It should be noted that Rule 69 does not specifically require that a judge pro tem be specifically assigned in that particular case/ proceeding, but that is how the Reeder Court interpreted the Rule. The fact that the parties had agreed that this mediator should act as judge pro tem for their case was not persuasive:  "Parties cannot stipulate to assign a judge pro tem to their case. One can only imagine the judicial chaos that would occur if parties, on their own, could 'assign' a judge pro tem to a matter already presided over by a superior court judge."

The end result of Reeder is that a tape recorded agreement can't be made pursuant to Rule 69 and be binding unless it is recited in front of a judge, commissioner, or judge pro tem who is assigned to this particular case by an appropriate Order of the Court. The opinion notes that to be binding, a Rule 69 agreement "recited" before a court reporter could not be tape-recorded, as the court reporter must be "acting in his or her official capacity and recording the proceeding as he or she would for a deposition or other court proceeding", which presumably does NOT mean audio tape-recording. [Footnote 2]

*Changes that might further affect Rule 69 agreements are pending even as this opinion comes down. Proposed revisions to Rule 67, the Rule that covers private mediation and other ADR procedures, would allow what Footnote 3 of the Reeder decision seems to disapprove. The proposed change is that upon request by the parties and the entry of an Order, the parties can agree that their mediator can 'transform' himself into a judicial officer to approve the agreements which were made when the same person was acting as mediator.   The proposed change makes it clear that the judge pro tem can receive nothing as payment for acting as a judge pro tem. Still, Footnote 3 states that this could "effectively authorize judges pro tem to use their official status to leverage their private income. We cannot conceive that the Supreme Court intended to approve such a practice when it drafted Rule 69." If the Supreme Court approves the proposed changes to Rule 67, it will in fact have approved such a practice.

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