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In this article, Yash Tandon of TNNLS discusses the confidentiality in Mediation Proceedings.

Introduction

In a world becoming ever more litigious, the need for alternative forms of dispute resolution became increasingly popular. This is because of speedy resolvement of the issues between the parties, unlike in court where the matter is rested at least after a couple of years, and in some cases like divorce or property matters it goes on endlessly.

What is Alternative Dispute Resolution?

Alternative dispute resolution is a process where the parties try to resolve the dispute, identifying their needs and generating creative options that lead to an outcome which parties can themselves craft and implement.

Mediation, a form of alternative dispute resolution, is becoming more commonplace in the legal environment. It is a decision-making process in which the parties are assisted by a third party, the mediator who attempts to improve the process of decision making and to assist the parties to reach an outcome to which each of them can agree i.e. a conclusion by which both the parties are satisfied. It is generally accepted that mediations are confidential. Absolute confidentiality, however, does not necessarily result in improved access to justice.

Firstly, before going into the confidentiality issue in mediation proceedings, we should know what is mediation?

What is Mediation?

Mediation is a procedure in which the parties discuss their disputes with the mediator who is a trained impartial third person(s) who assists them in reaching a settlement. It may be an informal meeting among the parties or a scheduled settlement conference. The dispute may either be pending in a court or potentially a dispute which may be filed in court.

Generally, the disputes suitable for mediation are as follows-:

  • Dispute of Commercial Transaction
  • Personal Injury
  • Construction workers, laborers and community relations
  • Divorce
  • Domestic Relations etc.

A mediator is a person with patience, persistence and common sense. Mediator has an arsenal of negotiation techniques, human dynamics skills, and powers of effective listening, articulation, and restatement. The mediator is a facilitator who has no power to render a resolution to the conflict. The parties will fashion the solution as the mediator moves through the process.

Now as we can see the nature of work of the mediator is very important, and he comes to know the issues of the parties. So there can be some issues which are private and confidential, but in order to resolve the issue, the mediator has to know such confidential matters and so how these matters are kept confidential by the mediator? Is there any agreement that mediator signs, not to disclose confidential matters to the public? Or, is there any contract between the mediator and the parties involved in the mediation?

Confidentiality In Mediation Proceedings

Need of Confidentiality in Mediation

To comprehend the focal issues, the inspirations, the weight focuses and the dangers of the case, the members must be guaranteed the discourses can\’t and won\’t be unveiled to others so they can talk straightforwardly. Every now and again, a portion of the rousing powers behind claims are lawfully insignificant but then outstandingly vital to understanding the contention and encouraging determination. As often as possible, customers uncover private occasions, observations or issues in mediation they would not need revealing to anybody. Clarifying their worries and fears is frequently basically critical to them so as to determine the contention. In the event that discourses with the middle person are not private and special, the intervention procedure, the mediator part and the potential for determination are fundamentally lessened.

To bullet list some of the above mentioned points, confidentiality is essential-:

  • To Strengthen the level of trust
  • To Increase Confidence in the Impartiality of the Mediator
  • To Increase the Integrity of the Mediation
  • To Beseech Full and Frank Disclosure
  • To Release Parties from the Strict Confines of the Rules of Law

Mediators often tell the parties at mediation that the mediation process is

private and confidential. This may be generally reinforced by a mediation agreement, which is usually prepared by the mediator, and signed by the parties and the mediator. However, is this clause or section in the mediation agreement, enforceable? What if the court orders for such information to impart justice? There are no easy answers to these critical questions.

How Mediation Agreement Ensures Confidentiality?

Mediation is a shut entryway private issue and the prime preferred standpoint related to intervention is privacy. Not at all like court procedures, third parties don\’t approach mediation procedures. The mediator intervention is private regardless of whether it brings about the settlement and determination of the question.

Eventually, the parties are likewise expected to keep private, all issues identifying with the mediation procedures. Notwithstanding amid the procedures when one party gives data to the mediator subject to a particular condition that it is to be kept classified, the middle person is blocked from unveiling that data to the other party.

On the off chance that intervention is unsuccessful, what unfolded in the mediation procedures isn\’t to be revealed. This is in spite of the reality that privacy in intervention has no statutory sponsorship [1] in light of the fact that the procedure of mediation is naturally thought to be secret.  In case of court-annexed mediation conducted by the mediation centers at Delhi also, confidentiality has been accorded due importance[2]. The courts have also emphasized upon the aspect of confidentiality in mediation proceedings[3].

Rules on confidentiality in Mediation: International Chamber of Commerce

While parties are allowed to concur on terms relating to privacy in a mediation agreement, principles of most establishments that manage mediation cases make arrangements for the same. For instance, the Mediation Rules of the International Chamber of Commerce (ICC) give that unless generally concurred by the parties or required by pertinent law, the intervention (yet not the way that it is occurring, has occurred or will happen) is private and classified. Therefore, entries made by another party or by the mediator in mediation may not be delivered as confirmation in any intervention, prosecution or comparable procedures, unless they can be gotten autonomously by the party looking to create them in those procedures. The same is made appropriate to sees communicated, recommendations made in regards to the settlement, or any confirmations made by another party in mediation.

What does the Arbitration and Conciliation Act, 1996 mentions on confidentiality in Mediation

India ordered the Arbitration and Conciliation Act, 1996 in accordance with the UNCITRAL Model Law. Article 75 of the said Act gives that the mediator and the parties should keep secret all issues identifying with the pacification procedures including the settlement understanding, aside from where its revelation is essential for reasons for usage and requirement.

Section 89 of Code of Civil Procedure Code,1908 on Confidentiality in Mediation: Need to Reform

Section 89 of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act, 1999 enunciates provisions for the settlement of disputes outside Court.

The difficulty with the provisions of Section 89 lies in the fact that it commands that where it appears to the Court that there exists a component of settlement which might be satisfactory to the parties, the Court should detail the terms of settlement and in the wake of accepting remarks of the parties may reformulate the terms of conceivable settlement after which parties might allude to arbitration, conciliation, judicial settlement or mediation.

The necessity that the Court must detail the terms of conceivable settlement puts a critical weight on the Court even before alluding the parties to intervention. The Court in such a case might be required to invest an impressive level of energy and exertion in begging parties to settle their debate and to draw up the terms of a conceivable settlement.

The very object of mediation or conciliation is to put the parties under the facilitative capacity of a mediator who will then empower them to investigate their interests and to think about different alternatives for arranging settlements. Putting the weight of planning the terms of a conceivable settlement on the Court even before the parties allude to mediation is in this way not proper in light of the fact that it is just when parties have taken recourse to mediation that the full range of option can be explored by them.

Can Courts Demand the Confidentiality Agreement, undergone in Mediation Proceedings?

Indian courts and quasi-judicial bodies have upheld the important role that confidentiality plays in mediation. Take the interesting case of Moti Ram & Anr. v. Ashok Kumar & Anr[4], the Supreme Court of India, in this case, had referred the matter for mediation to a Mediation Centre to attempt to resolve the dispute between the parties. Subsequently, a report by the Mediator was placed before the Court that mentioned the various settlement proposals made by the parties, among other things. As a result, the Supreme Court stressed that mediation proceedings are strictly confidential. It observed that when successful, the mediator should send the settlement agreement signed by the parties to the Court without mentioning what transpired during the mediation proceedings. When unsuccessful, the mediator should simply state that mediation has been unsuccessful. The Supreme Court was of the view that any disclosure of the happenings in a mediation proceeding destroys the confidentiality of the mediation process.

Salem Advocate Bar Association v. Union of India[5], this case led to the formation of Mediation and Conciliation Rules of Delhi 2004. Under Rule 19 of Mediation and Conciliation Rules, 2004[6], Confidentiality is mentioned which states that- Parties shall maintain confidentiality in respect of events that transpired during mediation/conciliation and shall not rely on or introduce the said information in any other proceedings as to:

  • “views expressed by a party in the course of the mediation/conciliation proceedings
  • documents obtained during the mediation/conciliation which were expressly required to be treated as confidential or notes, drafts or information given by parties or mediator/conciliators
  • proposals made or views expressed by the mediator/conciliator
  • the admission made by a party in the course of mediation/conciliation proceedings
  • the fact that a party had or had not indicated willingness to accept a proposal.”

NOTE- There shall be no stenographic or audio or video recording of the mediation/conciliation proceedings.

Confidentiality in Mediation – Is there an Exception?

In the case of Rama Aggarwal v. Delhi State Legal Service Authority[7] that came up before the Central Information Commission (CIC), the CIC held that a party cannot seek information pertaining to mediation proceedings under the Right to Information Act, 2005 as the same attracts exceptions under provisions of the said Act. The CIC observed that “Information regarding negotiation, mediation, conciliation, and counseling will fall under exempted clause of information of another spouse, being personal and given in fiduciary capacity and, no public interest is established in disclosure, while there is larger public interest in protecting that information as that would help mediation to flourish, hence such information shall not be disclosed.”

[1] Arbitration & Conciliation Act is different from Mediation. Article 75 of the said act ensures confidentiality in Arbitration and Conciliation Proceedings. This act is not applicable to Mediation Proceedings.

[2] http://ecourts.gov.in/sites/default/files/mediation%20rules.pdf (RULE- 19 and 20).

[3] Moti Ram & Anr. v. Ashok Kumar & Anr (2011) 1 SCC 466.

[4] Id.

[5] AIR 2003 SC 189.

[6] Supra note 2.

[7] https://indiankanoon.org/doc/3176933/

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