The Delhi High Court, on Monday, held that a mediation report should only contain one sentence and nothing more, in order to maintain the confidentiality of proceedings.
The Bench comprising Justice S. Ravindra Bhat and Justice Yogesh Khanna noted that failed mediation results in an adjudicatory process, where the parties have full liberty to fall back on all contentions available to them in law.
It then observed, "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.
This undoubtedly would compromise the ability of the party to establish her or his case on the merits in the dispute, before the Court, which is otherwise bound to appreciate the evidence and apply the law. In matters that involve exercise of discretion, such disclosures can be extremely damaging."
The Court was hearing a Review Petition filed by one Mr. Smriti Madan Kansagra, who had sought to know whether the Counselor's report furnished in the course of the mediation proceedings or the Mediator's report can be used by either of the parties during trial. The proceedings concerned the custody of the couple's minor son.
The parties had a series of meetings with the mediator and the Counselor. The mediation, however, failed, after which the Court ruled that reports of the Counselor and the Mediator were not confidential.
Ms. Kansagra had now challenged the Court's findings, relying upon, inter alia, the Delhi High Court Mediation and Conciliation Rules, 2004 and the Conciliations Rules of United Nations Commission On International Trade Law. She had contended that mediation is a purely confidential process and hence, anything said during the mediation process should not be made a part of the mediation report. She had further submitted that the mediator had wrongly engaged a Counselor, even though such discretion has only been vested in the Court.
The Court agreed with such contentions and observed, "In all cases, parties express their fears, their expectations and their dearly held positions on the strength of the confidence that they repose in the mediator and the mediation process- both of which are reinforced by the absolute cloak of confidentiality. Given these imperatives, mediator’s reports, where the process has led to failure, should not record anything at all...
... if a mediator were to report to the Court, about the course of the mediation proceeding, the danger is the real possibility of indirectly (if not directly) hinting at the obstructing party‘s behavior."
It also ruled that the Mediator could not have involved a Counselor, as the power to do so has exclusively been vested in the Court by Section 12 of the Family Courts Act, 1984 and that such power is non-delegable.
The Court then directed that the mediator’s as well as the counselor’s report shall be disregarded by the Family Court, when it proceeds to decide the merits of the case. It further clarified that the reports cannot be debated upon.
It summarized its conclusions as follows:
"(1) Mediation proceedings depend upon maintenance of confidentiality at all times, during and at the end of the proceedings. This constitutes a permanent “dark area” off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception. Mediators therefore cannot file reports especially in the event of failure (of parties to reach a settlement) discussing generally or even in neutral narrative, the position of parties or even without blaming the parties, indicating the reason for failure. 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.
(2) 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 require the parties to approach the Court. Upon the parties applying in this regard, the Court may, after hearing them, exercise its discretion under Section 12.
(3) 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. It should not be treated as part of the record, in the sense that it becomes the subject of debate or argument during the proceedings, on merits. Here, the Court is at liberty to devise the appropriate procedure, depending upon the exigencies of the case, under Section 10 (3) of the Family Courts Act."