Smriti Madan Kansagra
In this case, after hearing both sides, Division Bench of High Court referred parties to mediation and also directed that, Aditya be produced before Court on 11.05.2016. During ensuing mediation sessions, Mediator and Counsellor interacted with Aditya. Based upon her interactions with him, Counsellor submitted a report. Thereafter matter came up for final arguments before another Division Bench of the High Court. Respondent raised issue of admissibility of reports submitted by Mediator and Counsellor contending that, reports could not be relied upon in view of principle of confidentiality. High Court dealt with said submissions and while disposing of the appeal, by its judgment dated 17th February, 2017 observed that, mediation had failed.
But few important sections were discussed herein this case:
A] Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 are to the following effect:
- Confidentiality - Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.
- Admissibility of evidence in other proceedings. - The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings-
(a) Views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;
(b) Admissions made by the other party in the course of the conciliation proceedings;
(c) Proposals made by the conciliator;
(d) The fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.
B] Rule 20 of the Delhi High Court Mediation and Conciliation Centre (SAMADHAN) is to the following effect:
Rule 20: Confidentiality, disclosure and inadmissibility of information.
(a) When a Mediator/Conciliator receives factual information concerning the dispute from any party, he shall disclose the substance of that information to the other party, so that the other party may have an opportunity to present such explanation as it may consider appropriate.
Provided that, when a party gives information to the Mediator/Conciliator subject to a specific condition that it be kept confidential, the Mediator/Conciliator shall not disclose that information to the other party.
(b) Receipt or perusal, or preparation of records, reports or other documents by the Mediator/Conciliator, while serving in that capacity shall be confidential and the Mediator/Conciliator shall not be compelled to divulge information regarding those documents nor as to what transpired during the Mediator/Conciliator before any Court or tribunal or any other authority or any person or group of persons.
(c) Parties shall maintain confidentiality in respect of events that transpired during the Mediation/Conciliation and shall not rely on or introduce the said information in other proceedings as to:
(i) views expressed by a party in the course of the mediation/conciliation proceedings;
(ii) documents obtained during the mediation/conciliation which were expressly required to be treated as confidential or other notes, drafts or information given by the parties or the Mediator/Conciliator;
(iii) proposals made or views expressed by the Mediator/Conciliator.
(iv) admission made by a party in the course of mediation/conciliation proceedings;
(v) The fact that a party had or had not indicated willingness to accept a proposal.
- d) There shall be no audio or video recording of the mediation/conciliation proceedings.
- e) No statement of parties or the witnesses shall be recorded by the Mediator/Conciliator.
C] The format of the application which the Centre for Mediation and Conciliation (SAMADHAN) requires every party to fill in is to the following effect:
I agree to attend all the Mediation Sessions at the time and place fixed by the Mediator. Any party can withdraw from mediation if they so choose on finding that it is not helping them or their case. Each party will bear its own lawyer's fees. Each party will also share the cost of the Mediator's fees equally, unless the Court directs otherwise.
The entire process of mediation will be confidential and whatever is submitted to the Mediator will not be divulged or produced or be admissible in any Court proceedings. The Mediator will not be compelled to appear as a witness in any Court of law.
The mediation process is voluntary and not binding on the parties till them on their own volition, reach a settlement agreement and sign the same.