Confidentiality is the essence of mediation proceedings

Delhi High Court: While deciding the instant review petition wherein the issue was raised that whether the either parties during the trial can use the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case the process fails. The petitioner further raised a grievance against the decision of this Court dated 07.02.2017 holding that the reports furnished by the Counselor and Mediator were not confidential and will not fall within the bar of confidentiality. Allowing the petition it was observed by the Division Bench of S. Ravindra Bhat and Yogesh Khanna, JJ., that ‘confidentiality’ is the essence of mediation proceedings, thus constituting “a permanent ‘dark area’ and off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception”.

As per the facts, the parties to the instant petition are disputants before the Family Court claiming guardianship of the son born to them. In order to resolve the dispute amicably, the parties opted for Mediation which unfortunately failed. The Counselor appointed by the Mediator submitted its report to this Court thereby causing the decision of 07.02.2017. The counsel for the petitioner Prosenjeet Banerjee referring to the Delhi High Court Mediation and Conciliation Rules, 2004, Conciliation Rules of United Nations Commission on International Trade Law (UNCITRAL) and Mediation Training Manual issued by the Supreme Court, argued that mediation is purely a confidential process and anything said or any view expressed by the parties; or documents obtained etc in the course of the process, need not be a part of the mediation report especially when the mediation has failed. It was also argued that the Mediator was not authorised by the Court to refer the dispute to the Counselor. The respondents via Inderjeet Saroop put forth before the Court that the Counselor’s report is only to be referred for the purposes of appreciation of the parties’ stand vis-à-vis their child and urged the Court to exercise it’s parens patriae jurisdiction for the benefit of the child.

Perusing the contentions and facts and referring to the various Rules and Conventions namely UNCITRAL Rules, Arbitration and Conciliation Act, 1996 etc. all highlighting the confidentiality aspect of mediation, the Court observed that a Mediator is not an amicus curiae and therefore the process itself involves a neutral third party who in a non- judgmental fashion acts as a facilitator for the disputants to reach an agreement. Therefore mediation process depends upon maintaining confidentiality at all times till the end of the proceedings, thus a mediator cannot file reports to the Court especially when the process has failed. Mediators cannot involve experts or counselors in the process and if any need arises, the parties must approach the Court to explain requirement and the Court in such cases may use its discretion under Section 12 of the Family Courts Act, 1984. In case a counselor is appointed, a mediator shall not present when the parties are interacting with the counselor and interactions of the counselor and Court should be confidential as well. Based on the observations, the Court directed the Family Court to

disregard the reports of the Mediator and Counselor when it will determine the case upon its merits. It was also held that the said report will not be a subject of debate or argument. [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 12156, decided on 11.12.2017]

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