Rule 69.Binding Agreements

Rule 69 is short and load-bearing. Rules 67.3, 67.4, 73 and 76 all route their agreements through it.

Three ways to make an agreement binding

• In writing, signed by the parties personally or by counsel on a party's behalf.
• Stated on the record before a judge, commissioner, judge pro tempore, or certified reporter.
• Stated in an audio recording made before a mediator or a court-appointed settlement conference officer.

The third route is what makes mediated settlements durable. An agreement reached in a private mediation room, with no judge and no reporter, is binding if it was recorded -- so the parties need not reconvene before a judicial officer to lock it in.

Binding on the parties, not yet on the court

Section (b) draws the distinction that catches people. An agreement meeting section (a) binds the parties immediately. It is not binding on the court until submitted to and approved by the court as provided by law. A party cannot walk away from a Rule 69 agreement because the decree has not been entered -- but the court still reviews it, and in a case with children must still make the findings the statutes require.

The presumption

An agreement under section (a) is presumed valid, and the party challenging it bears the burden of proving a defect. Under A.R.S. section 25-324 the court may award the costs and expenses of maintaining or defending such a challenge.

That combination is the point of the rule: the formalities in section (a) are modest, and in exchange the agreement is hard to unwind. Meeting one of the three forms shifts the entire burden onto whoever later regrets it, and can carry a fee award as well.