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Moti Ram Tr. LRs and Anr. v. Ashok Kumar and Anr.: Extending Confidentiality to Mediation
With courts in India becoming overburdened by the constant rise of cases, Alternate Dispute Resolution (ADR) has become a popular method of dispute resolution that is cost effective and time efficient. Mediation is one of the mechanisms of Alternate Dispute Resolution whereby a neutral third party known as a mediator sits down with the parties and facilitates a conversation between them with the expectation that the parties will come to a mutually agreeable settlement. The mediator sits with the parties in both private – conversing with each party separately and joint sessions – engaging both parties in an honest and meaningful conversation which allows them to tell each other their issues and the extent that they are willing to compromise. Mediation is essentially a conversation which aims to bring the parties to a compromise that benefits them both. Unlike arbitration and conciliation – other methods of ADR, which are governed by the Arbitration and Conciliation Act, 1996, mediation procedure is yet to be standardized in India and as of now, mediation referred by the court under Section 89 of the Code of Criminal Procedure (CPC) follows rules and procedure prescribed by the court. Since mediation is not institutionalized or recognized by a specific statute which lays down the procedural rules to be followed, there is no specific provision for the maintenance of confidentiality during the mediation process.
To fill this lacuna in the law, the Supreme Court of India stepped in and declared a clarifying and much needed judgement in the case of Moti Ram Tr. LRs and Anr. v. Ashok Kumar and Anr.[1] which held that the events that occur during the process of mediation must be kept confidential. The reason why the case came up in the Supreme Court was because a dispute sent for mediation by the Court to a Mediation Centre in Chandigarh was resolved but the mediator submitted a report of the entire proceedings before the Court and this brought up the question of confidentiality. The Supreme Court, while deciding the case, considered the principles behind the mediation process and after much deliberation the Court held that unlike proceedings in an open court, mediation proceedings are to be kept completely confidential even when it is not private mediation, but court referred[2]. In the case of court referred mediation under Section 89 of the CPC, the court can refer disputes for mediation and if, even after that, the dispute has not been resolved the matter will return to the court where it will be adjudicated upon. However, if the dispute has been resolved, the mediator is required to draw up the terms of the agreement and get it signed by the parties following which the signed agreement is to be presented before the Court. The Supreme Court, while delivering the verdict, took court referred mediation into consideration and held that in the case of a resolved mediation, the mediator will only present the agreement before the court and not a report of the entire judgment as confidentiality should be maintained[3]. In the event that the events that transpired between the parties are disclosed to the public eye or anyone else, the confidentiality of the proceedings would be destroyed, and this would not hold good for the fate of mediation in the country.
Owing to the cost-efficient and timely resolution provided by mediation, many private parties as well as commercial transactions have resolved to be settled by mediation and due to the personal and delicate nature of these matters, confidentiality is a much-needed criteria that should be maintained. With respect to this factor, the Supreme Court has taken a giant step forward in the field of mediation by setting a standard for the maintenance of confidentiality; a precedent that will never be forgotten.
[1] Moti Ram Tr. LRs and Anr. v. Ashok Kumar and Anr. (2011) 1 SCC 466.
[2] Herbert Smith Freehills LLP, Supreme Court of India Holds that Mediation Proceedings are Confidential, Lexology, (Feb, 7, 2011, 10:55 PM), https://www.lexology.com/library/detail.aspx?g=2f7baf8e-833a-455a-8614-ce8e888cb50b.
[3] Vyapak Desai, Mediation Proceedings are Confidential says Supreme Court, IndiaLawJournal, (Mar. 23, 2012, 5:29 PM), https://www.indialawjournal.org/archives/volume4/issue_1/article_by_desia_kanuga.html.
- Mediation
- Confidentiality
- Supreme Court
