You’ve just finished a grueling day of mediation, the parties have
finally reached agreement on the major issues, and everyone is tired and hungry and just wants to go home. Yet, before everyone can leave, you need to document the understanding you worked so hard to reach. If this is a domestic matter, such as a divorce case, MCR 3.216(H)(7) allows the parties to acknowledge their agreement in writing or in an audio or a video recording. However, as some practitioners have pointed out, MCR 3.216(H)(7) seems to conflict with MCR 2.507(G) (stating that settlement agreements are binding only if made in open court or in a signed writing). So, while quickly recording an agreement may be tempting at the end of a long day, do the rules really permit this approach?
According to ICLE contributor Ric Roane, the recent case of
Vittiglio v Vittiglio,
Nos 303724, 304823, 2012 Mich App LEXIS 1511 (July 31, 2012), answered this question in the affirmative. In
Vittiglio, the court held that the parties’ audio-recorded settlement was enforceable under MCR 3.216(H)(7) and rejected the argument that MCR 2.507(G) rendered the agreement unenforceable. As Ric points out, “
Vittiglio serves to dispel any conflict in these two court rules by clarifying the validity of an audio recording of a settlement agreement.” But if you do reach for your audio recorder, Ric cautions: “clarity and lack of ambiguity is essential for the enforcement of settlement agreements, whether in writing or part of an audio or video recording.”
For more information on settlement agreements in domestic matters, see
chapter 9 in Michigan Family Law, which Ric coauthored with Ron Bookholder.