Getting quick and affordable justice is the desire of every disputing party. The Indian courts are burdened with numerous cases being filed daily. In such a scenario, Alternative Dispute Resolution (hereafter referred to as ADR) comes as a rescue. Among the various types of ADR mechanisms, ‘mediation’ is a form of ADR that allows the parties to decide their dispute amicably. In mediation a neutral third party, that is, the mediator facilitates the disputing parties to resolve their dispute.

Table of Contents:

• Confidentiality in Mediation
• Need of Confidentiality in Mediation
• Laws for Mediation in India
• Can Mediation Confidentiality be breached?
• Perry Kansagra v. Smriti Kansagra
• Conclusion
• Case Laws
• Moti Ram Thr. L.Rs. and Anr. v. Ashok Kumar and Anr.
• Salem Bar Association v. Union of India
• Rama Aggarwal v. PIO, Delhi Sate Legal Service Authority
• Perry Kansagra v. Smriti Madan Kansagra

Confidentiality in Mediation

The essence of mediation is ‘confidentiality’. In simple words, neither the mediator nor the parties can disclose the proceedings of mediation in court, if the case is not resolved through mediation. It is a major reason why the parties take recourse to it.

According to the confidentiality rule, if the mediation proceedings are successful, the mediator should send a report of settlement to the court and if they are not successful, the same should be informed to the court accordingly.

The report need not contain any discussions, or proceedings or any reason for settlement or non-settlement. What has to be informed to the court is only the result of the proceedings and nothing else.

This confidentiality does not extend only to the oral discussions between the mediator and the parties, but also extends to all the documents used by the parties during the proceedings.

Need of Confidentiality in Mediation

In mediation, the parties by themselves discuss and conclude their dispute. The mediator does not take any proactive role nor resolves the dispute. He only facilitates the disputing parties. The parties by themselves decide the outcome of their dispute.

For settling, the parties will enter into negotiations. But they will not be able to negotiate with a free mind if they have fear of these discussions being used against them in court.

The parties may have a doubt that the mediator or the other disputing party can use anything said by him, which is not in his favour, in the court.

To settle, free negotiations are necessary, but they can only be achieved if the said fear is removed. Thus, mediation has a rule of maintaining confidentiality.

Because if confidentiality is maintained, it will facilitate the parties to speak freely and keep their points.

Laws for Mediation in India

Though Indian courts upheld the confidentiality rule of mediation, India does not have any specific law dealing only with mediation.

Section 75 of the Arbitration and Conciliation Act, 1996, talks about confidentiality in conciliation proceedings.

Before the below-mentioned case, the parties were free to decide whether they wish to keep their mediation proceedings confidential or not. Thus, the case is among the first ones where it was laid that the mediation proceedings ought to be confidential.

In the case of Moti Ram Thr. L.Rs. and Anr. v. Ashok Kumar and Anr., to resolve a matter, the same was sent to a Mediation center by the Apex court. Later, the report by the mediator was placed before the court. The report with other things also mentioned various proposals that were made by the parties.

Thus, the Supreme court stated that the mediation proceedings are confidential. Further, the court stated that if the mediation is successful, then a settlement agreement with a sign of both the parties should be placed before the court. The agreement should not mention any communication that has transpired between the parties.

When the mediation turns out to be unsuccessful, the mediator should simply state the result to the court without discussing the proceedings.

In the case of Salem Bar Association v. Union of India, a need was felt by the court to regulate the mediation proceedings. With this view, a committee named ‘Mediation and Conciliation Project Committee’ under Justice Jagannadha Rao was formed and ‘Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003’ were laid. These rules provided procedural non-binding guidelines for court-referred mediation.

The said rules in Rule 20 provides all the aspects that are to be treated as confidential.

The Apex court also stated that, the said rules with certain modifications should be adopted by all High courts.

Can Mediation Confidentiality be breached?

As a general rule, the mediation proceedings are confidential. It is a principle of mediation that anything discussed, or disclosed by any of the parties before the mediator cannot be put to record. It is against the ethics of mediation to disclose any communications done in mediation. The courts in several cases have upheld the confidentiality rule.

In the case of Rama Aggarwal v. PIO, Delhi State Legal Service Authority, it was held that information relating to mediation proceedings cannot be sought through the Right to Information Act, 2005.

Likewise, the courts have upheld confidentiality in several cases.

Thus, in general circumstances, mediation confidentiality cannot be breached.

But, in the case of Perry kansagra it was for the first time that an exception to the mediation confidentiality rule was laid.

Perry Kansagra v. Smriti Madan kansagra

In the case of Perry Kansagra v. Smriti Madan Kansagra, the issue was about the custody of a child. The appellant and the respondent due to frequent disputes between them fell apart. The Appellant father wished to have custody of the child and thus filed a guardianship petition. He prayed to the Court to be appointed as the guardian of his child. He is a Kenyan and holds both an Indian and British passport.  As per the Respondent, the mother of the child, it was the wish of the App to bring the child in India to be brought up here in the Indian environment so that he develops the Indian values. In the proceedings of the guardianship, the Appellant was granted the visitation rights to meet the child in the shopping mall.

But the respondent being disappointed by this wanted overnight custody of the child. The reason being that when he visits India to meet his child with his parents, he and his parents can spend quality time with the child.

When the petition of guardianship was listed in the Family Court on May 4, 2016, he prayed to the court to direct the Respondent to produce the child in the court so that the court interacts with the child and ascertain the level of his comfortableness.

The Respondent opposed this. Despite her opposition, the Court directed to present the child before the court.

On an appeal being made by the Respondent to the High Court, the parties were referred to mediation by the Division Bench on May 6, 2016 and the parties were directed to produce the child before the court on May 11, 2016.

The parties with their consent were referred to a learned mediator on May 9, 2016. The mediator was allowed to join any other person in the process.

On May 11, 2016 the child was produced before the Division Bench. The court had a long conversation with him. It was noted by the Court that the child was very much comfortable with his father as well as his grandparents. He was happy about them visiting him. He remembered his days and his relatives in Kenya. He was happy about the experiences he had in the said country. He eagerly wished to meet his father and grandparents again.

The court also observed that the child had a similar attachment to his mother and maternal grandparents.

During the mediation proceedings, the mediator and counsellor interacted with the child. Their report was submitted on July 21, 2016 in a sealed cover.

Though efforts were taken, but the mediation failed.

On August 11 2016, the report was opened and was taken in the record. The parties were also given a copy of the report.

By relying on the report of the counsellor, the appellant father on August 12, 2016, prayed to speak to his child on the telephone.

The said prayer was objected to by the respondent.

For the final argument, the matter came in front of another Division Bench on February 17, 2017. The Respondent by relying on the confidentiality principle of the mediation questioned the admissibility of the Mediator’s report in the court proceedings.

Thus, the court was of the view that there is no doubt on the position of the mediation proceedings being confidential, but where the mediation report is used to solve a child parenting issue, the report of a mediator or counsellor can be taken in the record. The reason is that no information about the couple is being brought on record.

The importance of section 12 of the Family Courts Act, 1984 cannot be ignored.

What has been brought on record is the report of a mediator and child counsellor, which are nothing but disclosing the good relations of the child with both the parties. These reports will best serve the court in reaching a conclusion that is in the child interest. Thus, these reports are not their confidential communications.

The court terminated the further appeals and overnight interim custody was given to Appellant, with certain conditions being imposed, when he is in India.

Against this judgement of the court, a review petition was filed by the mother of the child on March 18, 2017. The said review petition was allowed and, in its judgement, dated December 11, 2017, the court held that there are no exceptions to confidentiality laid down in our laws or mediation rules. The rule of confidentiality in mediation is absolute. The exhibition of the report will violate section 75 of the Arbitration and Conciliation Act. Thus, the court was allowed to challenge the judgement dated February 17, 2017.

On appeal, the Respondent’s counsel laid stress on various judgements to submit that confidentiality in mediation is absolute and no exceptions exist to it, whereas, the Appellant’s stressed on Rule 8(viii) of the Family Court Rules, through which the courts can ask the counsellor for a report on any matter the Judge considers necessary.

The court held that the idea of mediation is to resolve the disputes amicably. The statement is made in the mediation proceedings should not be used in subsequent stages. Confidentiality is the essence of the mediation.

But this adherence to the mediation confidentiality rule is correct in normal matters where the court acts as an adjudicator. But this approach is unsuitable where the court acts as a parent.

While deciding cases of such nature, the interest of the child is of utmost importance. Under Rule 8(viii) of the Family Court Rules, the counsellor is allowed to give to the court a report informing the home environment of the parties, how the parties are and what bond they share with the child. The reports if taken into consideration by the courts will assist in arriving at a conclusion that is best suited for the child. The reports will be helpful to decide the issue of child’s guardianship. So, considering them confidential in such a scenario will hamper the decision-making process.

Thus, the court set aside the judgement dated December 11, 2017, passed by the High court and restored the earlier judgement of 17 February 2017.

Recently in October 28, 2020, the court after hearing the child has given custody to his father.

Conclusion

Mediation is one of the most effective ADR mechanisms to resolve disputes between the parties. The presence of confidentiality rules in mediation makes it more effective. It was an absolute rule that mediation proceedings will be confidential. But it was in the case of Perry Kansagra that an exception to the rules was carved.

With time confidentiality status of mediation has improved in India, but many High courts have taken little or no efforts to incorporate the mediation rules in their jurisdiction. Though rules exist for mediation, but bringing a proper dedicated Act for it, will better the situation.