Mediation is an interactive process between the disputed parties, where an impartial third party helps resolve the conflict using negotiation and specialised communication techniques. One of the main reasons parties go for mediation is the confidentiality it maintains between the parties and the mediator. It is a critical factor as it enables parties to communicate freely and reach a settlement. Parties are more comfortable and relaxed because any information or communication that takes place is within the insides of four walls.
LEGAL BACKING FOR CONFIDENTIALITY
Article 9 of ICC (International Chamber of Commerce) states confidentiality as one essential feature. Parties wanting to resolve disputes are encouraged to speak freely, which ensures privacy and confidentiality. Submissions made by parties in the mediation process cannot be produced as evidence in any court proceeding, arbitration, or litigation unless such submission is obtained independently by the party wanting to have them in such proceeding.
The Arbitration and Conciliation Act, 1996, was enacted in India following UNCITRAL law. The Conciliator and the parties are required under Section 75 of the Act mentioned above to maintain all matters about the conciliation procedures, including the settlement agreement, private unless disclosure is necessary for reasons of implementation and enforcement. ‘Mediation’ and ‘Conciliation’ terms are often interchangeably used in India.
Sec. 89 of Code of Civil Procedural (Amendment) Code, 1999 lays out provisions for settling disputes outside the court. This provision ensures that the cases must be referred for ADR mechanisms based on the facts as per their law.
CASES ON CONFIDENTILAITY
There are cases where courts and quasi-judicial bodies have upheld the crucial role of confidentiality in mediation. In the issue of Moti Ram (D) Thr. L.Rs. and Anr. vs. Ashok Kumar and Anr.., the Supreme Court of India assigned the matter to a Mediation Centre to resolve the dispute between the parties through mediation. Following that, the Mediator presented a report to the Court that included, among other things, the different settlement options submitted by the parties. As a result, the Supreme Court emphasised the need of keeping mediation proceedings confidential. The court stated that if the mediation process's happenings are disclosed, it will destroy the confidentiality of the mediation process. If the mediation is unsuccessful, the mediator should only mention that and not what transpired during the meeting.
The Central Information Commission (CIC) held in the case of Rama Aggarwal vs PIO, Delhi State Legal Service Authority that came before it that a party cannot seek information about mediation proceedings under the Right to Information Act, 2005 because it is subject to exceptions under the Act's provisions. “Information about negotiation, mediation, conciliation, and counseling will fall under the exempted clause of information about the other spouse, as it is personal and given in a fiduciary capacity, and no public interest in disclosure has been established, while there is a greater public interest in protecting that information as it would help mediation flourish, thus such information shall not be disclosed” the CIC stated.
The High Courts in India have also attempted in setting rules to strengthen the Mediation process. Mediation and Conciliation Rules, 2004 was laid out by the Delhi High Court. The Rules compel parties to preserve confidentiality regarding events that occurred during mediation and forbid parties from relying on or introducing such material in any other process.
In Conclusion, the confidentiality clause has been given utmost significance in respective judgments and cases.
 (2011(1) KHC 37 (SC)).
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