(a) Generally. Private mediation is a voluntary and confidential process in which parties confer with a neutral mediator to help them resolve the dispute. The parties may retain a private mediator under Rule 67.3(d), or a private mediator may be selected by the court under Rule 67.3(e). Although the court may order a party to appear for a mediation conference, participation in mediation is voluntary.
(b) Confidentiality; Communications with the Court; Other Roles of the Mediator.
(1) Confidentiality. Mediation conferences are conducted privately. Oral and written communications exchanged during a mediation are confidential. Unless these rules specifically state otherwise, the provisions of A.R.S. § 12-2238 apply to mediation conferences under this rule.
(2) Communications with the Court. The mediator must not communicate with the assigned judge or commissioner about anything that was said, submitted, or done before or during the mediation, except:
(A) the mediator may advise the court in writing about the mediation schedule and any procedural matter related to the mediation, so long as the substance of what the parties or their counsel say or do during the mediation remains confidential;
(B) the mediator may report matters to the court if the parties agree or if the law requires or permits the disclosure;
(C) the mediator may report to the court a party’s failure to appear at a scheduled mediation conference as required under section (k), or a party’s failure to submit a mediation memo as required by the mediator under section (l); and
(D) the mediator may report to the court information as allowed in section (n).
(3) Other Roles of a Mediator. The mediator may not conduct any other form of dispute resolution process in the same case, unless the parties agree and the court approves.
(c) Subjects for Mediation. The parties may privately mediate any issue in dispute.
(d) Privately Retained Mediator. The parties may agree to, and jointly select, a private mediator. The parties must sign and file a notice that states that private mediation will take place, identifies the name of the jointly selected mediator, and specifies the date set for the initial mediation conference.
(e) Court-Selected Private Mediator. The parties may ask the court to select a mediator for them from a list of private mediators they provide to the court.
(f) Payment for a Private Mediator’s Services. The parties must contract directly with a private mediator and be responsible for payment of the mediator’s fees. Unless the parties agree or the court orders otherwise, the cost of mediation must be shared equally by the parties.
(g) Judges Pro Tempore as Mediators.
(1) Request. The parties may ask the court to appoint an active judge pro tempore in good standing to conduct a private mediation. The request must be accompanied by a signed affidavit stating that the judge pro tempore is active and in good standing and was appointed by the Supreme Court at the request of the presiding judge of the superior court in that county.
(2) Order. A court order appointing a judge pro tempore to conduct a private mediation may authorize the mediator to:
(A) approve binding agreements made by the parties that comply with Rule 69;
(B) make any findings necessary to approve party agreements under A.R.S. § 25-317;
(C) make the jurisdictional findings under A.R.S. § 25-312 or A.R.S. § 25-313; and
(D) sign any Decree of Dissolution that conforms to the agreements reached by the parties.
(3) Effect. A Decree of Dissolution signed by a judge pro tempore under subpart (g)(2) has the same force and effect as a Decree of Dissolution signed by a judge or court commissioner. The judge pro tempore must promptly deliver the signed decree to the judge who authorized the judge pro tempore to conduct the mediation, and that judge will file the decree and enter it into the court’s minutes.
(4) Payment for a Judge Pro Tempore’s Services. The parties may pay a judge pro tempore for his or her services as a private mediator. But the parties may not pay, and the judge pro tempore may not ask them for, remuneration or anything of value for his or her service as a judge pro tempore involving the approval of agreements, or for signing a Decree of Dissolution.
(h) Discretion to Order Mediation. On agreement of the parties, the court may enter an order referring a matter to mediation. The court may decline to refer a matter to mediation if it appears that mediation is inappropriate because of parental unfitness, substance abuse, mental incapacity, domestic violence, or other good cause, or because mediation will cause undue delay.
(i) Consideration of Domestic Violence.
(1) Limit on Referring a Matter to Mediation. In a case concerning legal decision-making or parenting time, if an order of protection is in effect involving the parties or if the court finds that a party’s conduct would justify the entry of a protective order, the court may order mediation or refer the parties to mediation only if policies and procedures are in place that protect the victim from harm, harassment, or intimidation.
(2) Disclosure. Before a mediation, the court must notify parties in writing or orally in open court of their right to ask to waive mediation, or to ask the court to order reasonable procedures at the mediation, to protect a victim of domestic violence. A party is not required to appear for mediation pending the court’s ruling on such a request.
(3) Mediator’s Duty. The mediator must decline to mediate, or must terminate mediation, if the mediator determines that domestic violence makes mediation inappropriate.
(j) Applications for Default. Upon entry of an order to mediate or a referral to mediation, and unless the court orders otherwise, a party may not file an application for entry of default until the mediator files a report advising that the mediation has concluded.
(k) Scheduling Mediation Conferences; Persons Who May Attend.
(1) Scheduling. After the court has entered an order or referral to mediation, the mediator will schedule joint or individual conferences with the parties. Each party must attend conferences as the mediator directs.
(2) Persons Who May Attend. The mediator may permit persons other than parties and their counsel to attend or participate in a mediation, if those other persons agree in writing to be bound by this rule’s confidentiality provisions. Counsel for a party may be excluded from a private mediation conference only if the party and counsel agree. However, a conciliation court mediator or conciliation court policy may authorize the exclusion of counsel.
(3) Failure of a Party to Appear. The parties are required to appear at mediation conferences as the mediator directs. The mediator must report to the court the identity of a party who fails to appear, and the court may impose sanctions on that party under Rule 71.
(4) Failure to Complete Mediation. The court will not continue a scheduled trial or hearing based on a failure to complete mediation unless a party shows good cause for the continuance.
(l) Mediation Statement.
(1) Generally. The mediator may require each party to submit a mediation statement before a conference, and the court may impose sanctions if a party fails to do so. If a mediation statement is required, a party must submit it to the mediator but must not file it with the clerk.
(2) Content. A mediation statement must include the following information along with any other information required by the mediator:
(A) a general description of the issues in dispute, the party’s position on each issue, and the evidence that will be presented to support the party’s position;
(B) if the issues involve financial matters, a current Affidavit of Financial Information, a list of outstanding debts and the party responsible for each debt, and an inventory of community or joint assets, including dates of acquisition, amounts of encumbrances, and present values;
(C) a summary of negotiations the parties have had previously; and
(D) any other information the party believes will be helpful to resolving the issues.
(m) Binding Agreements in Mediation. Any binding agreement reached by the parties during a private mediation must comply with Rule 69. Any agreement between the parties during the mediation must contain their acknowledgement that:
(1) each party entered the agreement voluntarily, without threat or undue influence, and after full disclosure of all relevant facts and information;
(2) each party intends the agreement to be final and binding;
(3) the agreement is fair and equitable; and
(4) if the parties have minor children in common, the agreement is in the best interests of the children.
(n) Report to the Court.
(1) By the Parties. The parties must notify the court when the mediation has concluded and advise the court of any agreements that fully resolve their issues. The parties must provide this notice not later than 10 days after the mediation concludes, but also not later than 10 days before the date set for trial or hearing.
(2) By the Mediator. If the parties reach a partial agreement or no agreement during mediation, the mediator must file a brief report with the court stating that the parties met and attempted to resolve their differences but that the mediation was unsuccessful. The report also must state any agreements the parties reached and the remaining unresolved issues. The mediator must not report the parties’ respective positions and must not comment on or offer any opinion about a party’s position. The mediator also may advise the court if the parties or the mediator believes that further mediation would be helpful for resolving the remaining issues.