December 12, 2017
Smriti Madan Kansagra vs Perry Kansagra
Date of Judgment: December 11, 2017
In this recent judgment, passed by the Division Bench of Delhi High Court, the Court has settled the legal proposition that there can be no exception to rule of confidentiality in mediation proceedings and a mediator’s report cannot be used by either parties during trial. The Court in the case has also directed that the Mediator’s report should only enumerate the report of failure, preferably in one sentence and nothing more. The entire case can be accessed here.
In the case, the Petitioner (wife) sought review of the judgment passed by Delhi High Court on February 17, 2017 Court disposing of a matrimonial appeal? The petitioner core issue in review petition is whether the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial?
In the impugned judgment the Court had held that the reports of the Counselor/Mediator were not confidential and would not fall within the bar of confidentiality and placed its reliance upon Section 12 of the Family Courts Act, 1984. The Court had held that:
There can be no quarrel with the proposition that mediation proceedings are confidential proceedings and anything disclosed, discussed or proposed by the parties before the mediator cannot be recorded, much less divulged. The reason being that very often during mediations, offers, counter offers and proposals are made. The ethos of mediation would bar disclosure of specified communications and writings associated with mediation. Parties are encouraged during mediation to engage in honest discussions as regards their problems and in matrimonial disputes these honest discussions many a time give rise to a better understanding between the couple. Such an approach encourages a forget and forgive attitude to be formed by the parties. If either spouse is under an apprehension that the well-meant deliberations might subsequently be used against them it would hamper an unreserved consideration of their problems. The atmosphere of mutual trust during mediation warrants complete confidentiality.
But where the scope of mediation is the resolution of a child parenting issue, report by a mediator or a child counselor concerning the behaviour and attitude of the child would not fall within the bar of confidentiality for the reason no information shared by the couple is being brought on record.
In review the Petitioner challenged the aforesaid view of the Court on the principles of confidentiality in mediation. In essence, the Petitioner argued that mediation is purely a confidential process and anything said or any view expressed by the parties in the course of conciliation process, the documents obtained or information or proposal made or views expressed, need not be a part of the mediation report especially when the mediation has resulted in a failure.
It was also argued that the Court’s order would also cause prejudice to the wife in the course of matrimonial proceedings.
The Two-Judge Bench of the Delhi High Court deliberated at length on the issue pertaining to confidentiality of mediation reports and the mandate under Section 12 of the Act. While upholding that there are no exceptions to maintaining of confidentiality in mediation reports, the Division Bench made the following observations:
- The Court enumerated the Rules relating to Mediation and Conciliation, the Conciliation Rules of UNCITRAL, confidentiality provisions under the Arbitration and Conciliation Act to settle the proposition that the mediation proceedings are absolutely confidential and anything disclosed, discussed or proposed before the mediator need not be recorded, much less divulged and that if it is done there would always be an apprehension that the discussion may be used against the parties and it would hamper the entire process. The atmosphere of mutual trust warrants complete confidentiality and the same is in fact noted in the main judgment.
- That in the instant case the petitioner is aggrieved by its later part of the impugned judgment which notes “but where the scope of the mediation is resolution of child parentage issue, the report concerning the behaviour and attitude of the child would not fall within the bar of confidentiality”. The Court in this context opined that this is against the principle of mediation and charts the course of a slippery slope.
- No exception to the Absolute rule of confidentiality- That no exceptions are made in the mediation rules either in Indian laws or in various jurisdictions to the absolute rule of confidentiality.
- Mediator is not an amicus curiae- The Court categorically stated that a mediator is not amicus curiae, or as is mistaken, an officer of the court. A mediation process is one where a neutral third party (the mediator) acts as a non-judgmental facilitator to help the disputants reach an agreement which is satisfactory to all involved. Mediation requires cooperation among the parties to “re-orient” them toward each other for the sake of maintaining their ongoing relationships.
- Role of Mediator- While substantiating on the role of mediator, the Division Bench remarked that unlike a local commissioner, who is appointed to report facts and circumstances to the court, the mediator does not play a part in the adjudicatory process. Howsoever it may be termed, a failed mediation results in an adjudicatory process, where the parties have full liberty to fall back on all contentions available to them in law. Their confidence in the adversarial system rests on their belief that the positions held by them in court is justified in law, irrespective of the concessions they might have made in private to the mediator, entirely on the strength of the confidentiality the process guarantees. Allowing reports: any reports, to be on the record, other than merely reporting the outcome: i.e. in the event of failure, stating that as a fact, with no preface and no conclusions or observations, is what they expect; that is what the Court also requires. Exceptions made, even to allow the most innocuous observations, recounting the dates or what the mediator thought of the process of mediation, or the parties, even in neutral language, can result in prejudice, because the Court seized of the dispute, or a party’s counsel, has the other side of the picture and it might not be difficult to hazard a guess as to which was the party behaving unreasonably or creating an obstruction.
- That the observations made in the impugned judgment would permit the mediators to exercise de facto, or in default, the disputes, the mediation process, including the mediator’s role; the circumstances that may lead the mediator to make a particular recommendation to the court; limitations on the confidentiality of the process; and access to information communicated by the parties or included in the mediation file etc.
- Mandate under Section 12 of Family Court Act- That the requirement of Section 12 of the Act has to be understood as the mandate of law that only the Court and no other body can refer the parties to counseling. The proposition that something which the law mandates to be performed in one manner, and no other manner ―where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all applies with full force.
Court’s Directions to Mediators
- It is held that a mediator can report only one outcome: a settlement, if it is agreed to by the parties and the terms of which are written. In all other circumstances, it is hereby declared that no mediation report should contain anything except the report of failure, preferably only one sentence that ―the parties could not agree to settle their disputes or some such language. Nothing more.
- That Mediators cannot involve experts in the process; if there is any need, they have to require the parties to approach the Court explaining the reason why there is need. In case the mediator feels that involvement of a counselor in family or custodial matters is essential, she or he again has to to require the parties to approach the Court. That in the proceeding or interaction between the parties either singly or together, with the counselor, the mediator should not be present. The communication between the counselor so appointed and the Court should be confidential (as also the report) and it may be shared with the parties under such circumstances as the Court may deem appropriate.
In view of the aforesaid, the Division Bench of Delhi High Court in the instant case has categorically held that the mediator’s report as well as the counselor’s report shall be disregarded by the Family Court, when it proceeds to decide the merits of the case. This also means that the said reports cannot be a subject of debate or argument.
 Section 12 provides for assistance of medical and welfare experts. It states that a Family Court can secure the services of a medical expert or such person professionally engaged in promoting the welfare of the family for the purposes of assisting the Family Court in discharging the functions.