* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11.12.2017
+ C.M. APPL. 42790/2017 42791/2017 IN MAT. APP. (FC)
67/2016
SMRITI MADAN KANSAGRA …. Appellant
Through: Mr. Prosenjeet Banerjee, Advocate.
Versus
PERRY KANSAGRA . …. Respondent
Through: Ms. Inderjeet Saroop and Mr. Raghav
Saroop, Advocates.
CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
HON’BLE MR. JUSTICE YOGESH KHANNA
MR. JUSTICE S. RAVINDRA BHAT
%
C.M. APPL.42791/2017 (for exemption)
Allowed, subject to all just exceptions.
C.M. APPL. 42790/2017
1. The petitioner/wife seeks review of the judgment dated February 17,
2017 (hereafter “order under review” or “main judgment”) of by this Court
disposing of a matrimonial appeal – Mat. App. (F.C.) 67 of 2016. The
question on which the petitioner seeks review 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.
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 1 of 26
2. The parties here are disputants before the Family Court.
The husband filed a petition claiming guardianship of the son born to the
couple on December 02, 2009. The husband is Kenyan national who also
holds a British passport. Their son too had a Kenyan as well as a British
passport. The wife alleged having come to India because the husband wished
the child to be brought up in an Indian environment with Indian values. In
the connected litigation, the husband was given visitation rights, to meet his
son at a shopping mall. He sought overnight custody of the son to enable the
child to meaningfully interact with him and his parents. Before the Family
Court on May 04, 2016, the counsel for the husband requested for the
production of the child in Court to enable the Court to interact with the child,
and ascertain his comfort level. Despite the wife’s opposition, the Court
directed production of the child before it on May 07, 2016. Thereafter, a
second order was passed on the same date directing that in the presence of
the Principal Counselor attached to the Court, the husband be allowed to
meet the child for an hour in the evening. It was in these circumstances that
the wife preferred an appeal (Mat App. (FC) 67/2017) impugning the first
order dated May 04 2016, which directed the child to be produced in Court
on May 07, 2016.
3. On May 06, 2016, the Division Bench stayed the direction requiring
production of the child in Court. The Division Bench recorded the wife’s
fear that the husband might remove the child from India, The Court
proceeded to note that as according to the wife, the son’s Kenyan passport
had been lost; the husband was required to apply afresh for a new passport,
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 2 of 26
which, when issued was to be given over to the Family Court, in
guardianship proceedings.
4. On May 11, 2016, the Court interacted with the child and made
observations about its reflections in the order. It then recorded as follows:
―7. During our interaction with the parties, a desire is
expressed by the parties to make one more attempt for a
negotiated settlement of all disputes between the parties by
recourse to mediation. The parents of the respondent are also
present and have joined the proceedings before us. They have
also submitted that they would like to make an attempt for a
negotiated settlement for all disputes between the parties.
8. The respondent before us is a Kenyan citizen who has
flown to India along with his parents for monthly weekend
visitation with the child of the parties. They are present in
India today for this reason. It appears to us that efforts for
negotiated settlement deserve to be encouraged.
9. With the consent of parties, it is directed as follows:
(i) The parties shall appear before Ms. Sadhana
Ramachandran, learned Mediator in SAMADHAN-Delhi High
Court Mediation and Conciliation Centre on 9th May, 2016 at
2:30 pm.
(ii) It shall be open for the learned Mediator to join any other
person or relative of the parties, as may be deemed necessary,
for a holistic and effective mediation.
(iii) In case, the respondent or any of his relative are not
available in India, it shall be open for the learned Mediator to
join them by any electronic mode of communication including
Skype, Video Conferencing, etc. at the cost of the respondent.
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 3 of 26
(iv) It shall also be open for the learned Mediator to meet the
child at any place, as may be deemed convenient to her, and to
arrange any visitation or meetings with the respondent of the
child with the consent of the parties.‖
5. During the interactions between parties, the Mediator made an order
dated 11.08.2016 which notes:-
―1. Counsellor report has been received in a sealed envelope
which has been opened and shared with the parties. The report
is taken on record.
2. Photocopy of the counsellor report has been handed over to
learned counsel for the parties.
3. Report of the Mediator has also been received. Learned
Mediator would be out of Delhi till end of September, 2016.
4. Re-notify for September 07, 2016.‖
6. The parties here and the child had a series of meetings with the
mediator and the Counselor but they could not arrive at any settlement. The
Counselor then sent a report, dated 22.07.2016 to this Court which she
prepared during interaction with the child as a part of the settlement process
in the mediation. Concededly, mediation failed and this Court by judgment
dated February 7, 2017 held 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 1984 Act”)
to note the following :
―17. 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, counterC.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 4 of 26
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.
18. 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.
The mandate of Section 12 of the Family Courts Act, 1984
cannot be lost sight of.‖
7. The review petitioner has challenged these finding of the Court on the
principles of confidentiality in mediation. He relies upon the Delhi High
Court Mediation and Conciliation Rules, 2004; its prescribed application
format; Conciliations Rules of United Nations Commission On International
Trade Law (UNCITRAL); Uniform Mediation Act (USA), 2003; Hong
Kong International Arbitration Centre Rules, 1999; Code for Practice for
Mediators issued by the Family Mediation Council, England and Wales;
Guidelines issued by Family Justice Courts, Singapore; Members Code of
Professional Conduct issued by Family Mediation, Canada; Mediation
Training Manual issued by the Supreme Court of India and the case laws to
bring home his point that mediation is purely a confidential process and
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 5 of 26
anything said or any view expressed by the parties in the course of
conciliation process, the documents obtained or signed/drafts or information
or proposal made or views expressed, admission made etc. need not be a part
of the mediation report especially when the mediation has resulted in a
failure.
8. Mr. Prosenjit Banerjee, learned counsel for the review petitioner urged
the Court to recall or expunge the observations in the main judgment, which
according to him, cause prejudice to the wife in the course of matrimonial
proceedings. It was argued that the order under review, while citing Section
12 of the Family Courts Act, overlooked the fact that the power to refer to,
or enlist the services of, a counselor are that of the Court and the Court
alone. Thus, a mediator, who is bound by rules of confidentiality and merely
interacts with disputant parties with the aim of narrowing differences, using
tools such as neutral language, elimination of antagonistic perceptions,
ultimately strives to facilitate a negotiated amicable solution, which the
parties arrive at. She or he does not in any manner play a pro-active role in
the process, or decide for the parties. All this is achieved because of the
implicit trust, which the parties have in the mediator and the cloak of
confidentiality, which can never be cast aside. Mr. Banerjee relied on Moti
Ram (Dead) through LR Anr. v. Ashok Kumar Ors. (2011) 1 SCC 466
and argued that the main judgment wrongly distinguished its binding nature,
by citing Section 12 of the Family Courts Act (the 1984 Act”).
9. It was contended that in the present case, the mediator was never
authorized by the Court to refer the dispute to a counselor. In fact the power
to involve the counselor is exclusively that of the Court. To have held
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 6 of 26
otherwise, as the main judgment did, would be dangerous, because citing
parties’ consent, mediators can “outsource” their task and send reports that
would contain material prejudicial to one or the other party, which would
then become part of the record. Counsel contended that the mediator’s report
as well as the Counselor’s report is now a matter of record, which the
respondent husband would be relying on in the course of final arguments.
10. Mr. Banerjee stressed upon the importance of confidentiality and the
bar to mediator’s recording notes or even reporting to the Court as that
would inevitably jeopardize, indirectly if not directly, the appreciation of
merits of the case. It was submitted that in the present case, it would seem
that the reports of the mediator and counselor are neutral; in reality, however
they record reflections of their makers, which can be strongly suggestive of
what the Court ought to do. This, he stated, completely compromises the
parties and amounts to breaching the trust they reposed when they agreed to
mediation. He relied upon the order referring an earlier decision (of the
Supreme Court) requiring video conferencing procedures to be adopted in
family proceedings for reconsideration, by a larger bench, i.e. Santini v.
Vijay Venkatesh 2017 SCC Online 1080 (―Santini I‖ hereafter), the final
judgment by the larger bench (of 3 judges) Santini v. Vijay Venkatesh 2017
SCC OnLine SC 1202(―Santini II‖ hereafter) as well as Govind Prasad
Sharma v. Doon Valley Officers Co-operative Housing Society Ltd 2017
SCC Online 1001 where the Court had decisively ruled on the inviolateness
of confidentiality, enacted by Sections 75 and 81 of the Arbitration and
Conciliation Act, 1996. Mr. Banerjee also referred to several other decisions
of Courts in UK and Canada, stressing upon the need for ensuring
confidentiality in the mediation process.
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 7 of 26
11. Ms. Inderjeet Saroop, learned counsel for the respondent husband,
referred to the order of August 11, 2016 by this Court order in the appeal,
and argued that the placing on record of the Counselor’s report was not
contested or made an issue; the appellant implicitly agreed to this course of
action. Characterizing the review proceeding as an impermissible attempt to
reopen questions that attained finality, learned counsel argued that the
counselor’s report is to be referred only for the purpose of Court’s
appreciation with respect to the parties’ position vis-à-vis the child. Stressing
that the welfare of the child is of paramount importance in guardianship
proceedings, learned counsel urged that this Court as well as the Family
Court in effect exercises parens patriae jurisdiction. Learner counsel urged
that when the Court in its orders decided to take on record the counsellor’s
report, it in effect validated the discretion exercised by the mediator. As the
question of custody or even can interim custody was a subject matter of
appeal, this Court possessed all the powers that vested with the Family
Court. By extension, therefore, the Court in effect exercised the discretion
under Section 12 when the Counsellor’s report was brought on record. That
the mediator had initially taken the services of the Counsellor and brought on
record her report through that process was, therefore, an irrelevant factor.
12. It was submitted that mediation confidentiality cannot obscure the
nature of the litigation which is the sensitive balancing of competing
interests. The overarching public interest which the Court always keeps in
mind and never loses sight of is the welfare of the child in such proceeding.
Therefore, when the mediator decides to involve the services of a counsellor,
to probe the sensitivities, views and attitudes of the parties in such cases, she
actually enlists expertise of a particular kind uniquely relevant to custody
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 8 of 26
and guardianship issues. In these kinds of matters, an overemphasis on
procedural issues, can very well obscure what is of most importance – i.e.,
the welfare of the child. This was the dominant consideration in the Court’s
mind and in fact was expressly alluded to in the opening remarks contained
in the main judgment.
13. Learned counsel also relied upon the Family Court rules framed under
the Act and submitted that they facilitate the procedure which was adopted in
the present case. In this regard the Court’s notice was brought to sincere
efforts made by the mediator who held since sessions on 05 September 2016,
May 10, 2016; May 11, 2016; July 11, 2016 and July 22, 2016. It was urged
that the mediator’s report testifies the painstaking exercise to bring about an
acceptable and mutual understanding on the thorny issues. The report of July
22, 2016 was a mere reflection of what transpired and was and can never be
meant as indicative of the mind of the mediator, counsellor or either party. It
was submitted that the said report of July 22, 2016, in fact enclosed the copy
of the counsellor’s report which was then brought on the record.
14. Learned counsel argued that the scope of review does not admit a re-
examination of the merits of the case. It was stressed that the mere
circumstances that the underlying dispute is matrimonial does not mean that
the parameters of review shrink or enlarge having regard to the nature of the
case. It was submitted that the Family Courts Act in fact grants procedural
and circumstantial flexibility and gives considerable leeway to the Court in
devising appropriate procedures to discern the suitable order to be made.
Reference was made to Section 10(3) which contains a non-obstante clause
and states that ―Nothing in sub-section (1) or sub-section (2) shall prevent a
Family Court from laying down its own procedure with a view to arrive at a
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 9 of 26
settlement in respect of the subject-matter of the suit or proceedings or at the
truth of the facts alleged by the one party and denied by the other.‖
15. It was in the context of such procedure that the mediator was involved
and to the best judgment of the mediator and for entirely bonafide reasons, a
counsellor was involved. The counsellor made her best efforts and reported
to the Court. Neither the mediator’s report nor the counselor’s report in any
manner casts aspersions on either party and does not suggest any
conclusions. In these circumstances, it was improper for the review
petitioner’s counsel to contend that these reports would result in bias or
prejudice.
Discussion and Conclusions
16. It would be first necessary to set out the applicable rules and
provisions of law, cited by the parties. Rule 21 of the Delhi High Court
Mediation and Conciliation Rules, 2004 which directs mediation/conciliation
sessions to be conducted in privacy and whereas Rule 20 notes :-
“Rule 20 Confidentiality, disclosure and inadmissibility of
Information
(a) xxxxxx
(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
mediation/conciliation before any court of 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 notC.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 10 of 26
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) xxxxxx;
(iv) xxxxxx;
(v) xxxxxx;
(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.‖
17. The format of application of SAMADHAN (the Delhi High Court
Mediation and Conciliation Centre, which the parties were referred to) for
referring dispute to mediation, reads as follows:-
―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.‖
18. Similarly, Article 14 and Article 20 of the Conciliation Rules of
UNCITRAL read as follows:
―CONFIDENTIALITY
Article 14
The conciliator and the parties must keep confidential all
matters relating to the conciliationC.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 11 of 26
proceedings. Confidentiality extends also the settlement
agreement, except where its disclosure isnecessary for purposes
of implementation and enforcement.
*********** ***********
ADMISSIBILITY OF EVIDENCE IN OTHER
PROCEEDINGS
Article 20
The parties undertake not to rely on or introduce as evidence in
arbitral or judicial proceedings, whetheror 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 possiblesettlement 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 forsettlement made by the conciliator.‖
19. Keeping in view the above UNCITRAL Rules, Section 75 and 81 of
the Arbitration and Conciliation Act, 1996 were incorporated and same read
as under:-
―75. 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.
*********** ***********
81. 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;
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 12 of 26
(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.‖
20. The rules framed in other jurisdictions, viz. USA, Hong Kong,
England, Singapore, Wales, Canada etc. were relied upon by the appellant
wife, during the hearing. Rule 5 of Mediation Training Manual issued by the
Mediation and Conciliation Project Committee, Supreme Court of India
notes as follows:-
―5. Maintain Confidentiality
Mediation being confidential in nature, a mediator shall be
faithful to the relationship of trust and confidentiality imposed
on him as a mediator. The mediator should not disclose any
matter which a party requires to be kept confidential unless;
a) the mediator is specifically given permission to do so by the
party concerned; or
b) the mediator is required by law to do so.‖
21. There can, be no quarrel with the proposition that the mediation
proceedings are 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. The petitioner is aggrieved by its later part
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”. To our mind, this is
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 13 of 26
against the principle of mediation and charts the course of a slippery slope,
as this judgment would hereafter discuss.
22. No exceptions are made in the mediation rules either in our laws or in
various jurisdictions mentioned above to the absolute rule of confidentiality.
This Court held the mandate of Section 12 of the Family Courts Act, 1984
cannot be lost sight of; yet the issue is whether the order dated May 6, 2016
was passed purely under Section 12 of the Family Courts Act, 1984 or it was
simply to facilitate mediation of disputes between the parents of the child.
23. In this context, it is useful to recollect that an earlier decision of the
Supreme Court had mandated proceedings before Family Courts could be
held by using video-conference technology. The order referring the
correctness of that decision in Santini I (supra) perceptively stated as
follows:
―17. Unfortunately, it seems, none of these mandatory
procedures as laid down by the Parliament have been brought
to the notice of the Court while considering the case of Krishna
Veni Nagam (supra). The principal thrust of the law in family
matters is to make an attempt for reconciliation before
processing the disputes in the legal framework. Reconciliation
is not mediation. Neither is it conciliation. No doubt, there is
conciliation in reconciliation. But the concepts are totally
different. Similarly, there is mediation in conciliation but there
is no conciliation in mediation. In mediation, the role of the
mediator is only to evolve solutions whereas in reconciliation,
the duty-holders have to take a proactive role to assist the
parties to reach an amicable solution. In conciliation, the
conciliator persuades the parties to arrive at a solution as
suggested by him in the course of the discussions. In
reconciliation, as already noted above, the duty-holders remind
the parties of the essential family values, the need to maintain a
cordial relationship, both in the interest of the husband andC.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 14 of 26
wife or the children, as the case may be, and also make a
persuasive effort to make the parties reconcile to the reality and
restore the relationship, if possible. TheFamily Courts
Act expects the duty-holders like the court, counsellors, welfare
experts and any other collaborators to make efforts for
reconciliation. However, reconciliation is not always the
restoration of status quo ante; it can as well be a solution as
acceptable to both parties. In all these matters, the approaches
are different.
18. The role of a counsellor in Family Court is basically to find
out what is the area of incompatibility between the spouses,
whether the parties are under the influence of anybody or for
that matter addicted to anything which affects the normal
family life, whether they are taking free and independent
decisions, whether the incompatibility can be rectified by any
psychological or psychiatric assistance etc. The counsellor also
assists the parties to resume free communication. In custody
matters also the counsellor assists the child, if he/she is of such
age, to accept the reality of incompatibility between the parents
and yet make the child understand that the child is of both
parents and the child has a right to get the love and affection of
both the parents and also has a duty to love and respect both
the parents etc. Essentially, the counsellor assists the parents to
shed their ego and take a decision in the best interest of the
child.
19. To what extent the confidence and confidentiality will be
safeguarded and protected in video conferencing, particularly
when efforts are taken by the counsellors, welfare experts, and
for that matter, the court itself for reconciliation, restitution of
conjugal rights or dissolution of marriage, ascertainment of the
wishes of the child in custody matters, etc., is a serious issue to
be considered. It is certainly difficult in video conferencing, if
not impossible, to maintain confidentiality. It has also to be
noted that the footage in video conferencing becomes part of
the record whereas the reconciliatory efforts taken by the duty-
holders referred to above are not meant to be part of the
record. All that apart, in reconciliatory efforts, physicalC.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 15 of 26
presence of the parties would make a significant difference.
Having regard to the very object behind the establishment
of Family Courts Act 1984, to Order XXXIIA of the Code of
Civil Procedure and to the special provisions introduced in the
Hindu Marriage Act under Sections 22, 23, and 26 , we are of
the view that the directions issued by this Court in Krishna Veni
Nagam (supra) need reconsideration on the aspect of video
conferencing in matrimonial disputes.‖
24. Later, in the main majority judgment (Santini-II) in a three judge
bench, the role of the Family Court was explained as follows:
―The reconciliation requires presence of both the parties at the
same place and the same time so as to be effectively conducted.
The spatial distance will distant the possibility of reconciliation
because the Family Court Judge would not be in a position to
interact with the parties in the manner as the law commands.
By virtue of the nature of the controversy, it has its inherent
sensitivity. The Judge is expected to deal with care, caution and
with immense sense of worldly experience absolutely being
conscious of social sensibility. Needless to emphasise, this
commands a sense of trust and maintaining an atmosphere of
confidence and also requirement of assurance that the
confidentiality is in no way averted or done away with. There
can be no denial of this fact. It is sanguinely private.
********** *********
The Family Court Judge is only meant to deal with the
controversies and disputes as provided under the 1984 Act. He
is not to be given any other assignment by the High Court. The
in camera proceedings stand in contradistinction to a
proceeding which is tried in court. When a case is tried or
heard in court, there is absolute transparency. Having regard
to the nature of the controversy and the sensitivity of the matter,
it is desirable to hear in court various types of issues that crop
up in these types of litigations. The Act commands that there
has to be an effort for settlement. The legislative intendment is
for speedy settlement. The counsellors can be assigned the
responsibility by the court to counsel the parties. That is theC.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 16 of 26
schematic purpose of the law. The confidentiality of the
proceedings is imperative for these proceedings.‖
25. Section 12 of the 1984 Act, empowers the Family Court with the
discretion to refer the parties to a counselor. Undoubtedly, that power also
extends to the appellate court. However, this case has three rather unusual
features: one that the Court never authorized the mediator to exercise power
that is vested statutorily with it. The discretion to involve or not to involve a
counselor is the Court’s and is non delegable. The respondent husband’s
argument that the referral order permitted the mediator to involve “others”
cannot be meant to authorize the exercise of discretion that is solely vested
with the Court. Second, the issue of confidentiality is to be examined
because the mediator furnished two reports- to the Court, in this case. A
mediator’s position is unique; undoubtedly she (or he) has professional
training and competence to handle issues that involve intense and bitter
struggle over matrimonial issues, properties, shared household, custody,
(temporary or permanent) and in commercial matters, issues that have
monetary and financial impacts. 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. Having regard to this position the fact that a
mediator in a given case, proposes- for all the best and bona fide reasons, the
involvement of a counselor, does not in any manner undermine or take away
the Court’s sole power to exercise it. In the eventuality of the parties’
agreeing, to such a course, they have to be asked to approach the Court, for
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 17 of 26
appropriate orders; the Court would then refer them to the counselor. The
question of the kind of report to be submitted to the Court and whether it
would be a part of the record would be known during the course of the
proceeding. In the present case, the parties merely consented. There is
nothing to show that the parties were aware that the mediator’s report, with
regard to not merely what transpired, but with respect to her reflections,
would be given to the court; nor was there anything to show that they were
aware – when they consented to the involvement of a counselor that her
report would be given to the court. The third unusual feature is that in at
least two sittings with the counselor, the mediator was present. This “joint”
proceeding is, in the opinion of the Court, unacceptable. It can lead to
undesirable consequences, especially if the mediator and counselor proceed
to furnish their reports (as they did in this case). A reading of both reports in
the present case, paints a definite picture to the reader strongly suggestive of
a plausible course of action or conclusion. It is this, the power of suggestion,
which parties are guaranteed protection from, when they agree to mediation.
Imagine if there were to be a possibility of divergence of opinion. Where
would that lead? Aside from adding to contentiousness, the Court too would
be left confounded.
26. It is necessary to state here 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. (Brown
Divorce and Family Mediation: History, Review, Future Directions, CoNC.
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 18 of 26
CTs. REV., Dec. 1982).The mediator facilitates the parties, whose
willingness to involve themselves in an attempt at settlement, leads them to
her or him. One of the fundamental drivers to this is confidentiality. The
process contains and encapsulates privacy and secrecy, in all its content and
hues. Often settlements are difficult to come by; the reason of failure can be
manifold: mistrust or unwarranted suspicion of one party; obstinacy,
unwillingness to budge from previously held entrenched positions; plain
uncouth or unpleasant behavior of a party, to spite the other. The mediator’s
role is to eliminate all these obstructions and lead the parties to the real
possibility of ending the strife or contest. Her reward is the success, when
achieved and the satisfaction of having brought together parties who possibly
could not share a common table hitherto, to shake hands. However, success
is not always guaranteed; the cause for failure would be all the factors
mentioned earlier or more. In such eventuality, 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. Even a neutral observation about one party’s unwillingness to
accept a possibly reasonable proposal (which may not be fully spelt out) lets
the cat out of the bag; more importantly, it amounts to an ex parte briefing to
the Court, through the report, by the mediator. Honesty, trust, and
cooperation are difficult to achieve if the parties fear that disclosures made
during mediation may later form the basis for a recommendation to the
Court. In this context, the effect of such reports or divulging of confidences
was explained in Govind Prasad Sharma Others (supra). A demarcation
report made by the government agency in the course of conciliation
proceedings between the parties was sought to be relied upon. The Court
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alluded to the ―four pigeon holes‖ which enact absolute bar to adducing
evidence or material regarding matters discussed in the course of conciliation
and held that if ―there are insidious encroachments on confidentiality, a free
and fair settlement may never be arrived at, thus stultifying the object sought
to be achieved by Part III of the 1996 Act.‖ The context of those
observations, undoubtedly was a conciliation proceeding; however, the
imperative of confidentiality is no less in mediation, because if parties do not
agree to settle, the outcome is the same: failure. In other words, the bar of
confidentiality, mandated by Section 75 of the Arbitration and Conciliation
Act, is no different for an unsuccessful mediation; it applies with equal, if
not greater rigor.
27. With respect, this Court is of the opinion that the reference to
insidious encroachments is most apt, in the circumstances. Unlike a local
commissioner, who is appointed to report facts and existence of
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
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 20 of 26
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. This is precisely what the Court said, in Moti Ram (supra) when it
indicated that when the mediation is ―unsuccessful the mediator only write a
sentence in his report and sent to the Court stating that ‗mediation has been
unsuccessful’‖ and nothing more.
28. In Potter vs. Potter 1983 (40) OR (Second) 417, the report of the
psychologist concerning the information passing between the parties before
marriage was also not permitted to be proved, on the principle of
confidentiality being essence of mediation. In Re Teligent Inc. 640 F.3d 53
(Second Circuit, 2011) the value of confidentiality was stressed when it was
said that ―Confidentiality is an important feature‖ of mediation, because it
―promotes the free flow of information that may result in the settlement of a
dispute.‖ The Court added, ―We vigorously enforce the confidentiality
provisions‖ of our own mediation system ―because we believe that
confidentiality is essential‖ to “its vitality and effectiveness.‖ Even in regard
to child custody mediation, confidentiality is respected and exceptions,
wherever needed, are clearly spelt out in governing rules or statute.1 The
1
For instance, the California Rules of Court, 2017 contains one such: Rule 5.210. Court-connected child
custody mediation, rules elaborately deal with responsibility of mediators, especially in child custody
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 21 of 26
Chartered Institute of Arbitrator’s Rules2 also maintain absolute
confidentiality rules, in mediation:
―12. Confidentiality Save as required or permitted by law:
12.1the Institute, the parties, their representatives, their
advisors and the mediator(s) shall keep confidential all
information (whether given orally, in writing or otherwise)
produced for, or arising out of or in connection with, the
mediation passing between any of the participants and between
any of them and the mediator made for the purposes of the
mediation, including the fact that the mediation is taking place
or has taken place. Each party shall be responsible for ensuring
that all of its representatives and advisors are bound by
appropriate undertakings of confidentiality and shall take
appropriate measures to limit the dissemination of any
information relating to the mediation only to those persons as
may be required for the purposes of the mediation;
12.2 unless the parties otherwise agree in writing,
confidentiality under this Rule 12 also extends to the existence
and content of any settlement agreement except to the extent
that disclosure is necessary for its implementation or
enforcement; and12.3 no document or other communication that would be
admissible in evidence in any court, arbitral or adjudication
proceeding shall be rendered inadmissible by reason only of its
disclosure in the course of and for the purposes of the
mediation.‖
29. The observations made in the main judgment dated February 17, 2017
in effect 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. Most jurisdictions
stipulate mandatory eligibility and qualification criteria for enlistment as mediators in matrimonial and
custody disputes.
2
protocols-and-rules/mediation/1-guidelines-on-confidentiality-in-mediation.pdf?sfvrsn4 accessed on 10
December, 2017 at 16:38 hours.
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 22 of 26
exclusive powers of the Court under Section 12 of the 1984 Act, which are
non delegable. There is no question of validation of such action, by a later
order of the Court. The danger of this would be that Courts can well draw
upon such irregularly produced material, to arrive at conclusions. The
requirement of Section 12 also 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‖3 applies
with full force. The order dated May 06, 2016 in this case merely referred
the parties to the mediator and carved out the course and ambit of mediation.
The report of the counselor was never sought by the Court, and yet was
treated to be one under Section 12 of the Act of 1984. Had the Court invoked
Section 12 of the Family Courts Act, 1984 it would have clearly spelt out
and recorded that while doing so; and in that sense there ought to have been
a clear invocation of Section 12. The absence of such reference necessarily
meant that the reference to “others” meant only those connected with the
dispute, such as family members of either the husband or the wife, whose
participation was to facilitate amicable dispute resolution, not independent
evaluation by a counselor in an unguided manner to be incorporated or
annexed to a mediation report.
30. If such a position is allowed as in this case, mediation may then well
be used as a forum for gathering expert opinion which would then enter the
main file of the case. The mandate of Section 89 of the Civil Procedure
3
Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v Singhara Singh AIR 1964 SC
358
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 23 of 26
Code, 1908, read with Rule 20 and Rule 21 of the Delhi High Court
Mediation and Conciliation Rules, 2004 provides for confidentiality and
non-disclosure of information shared with the mediator and during the
proceedings of mediation. In the present case, the help of the counselor
sought by the mediator to get holistic settlement between the parties was not
ordered in the manner visualized by Section 12 of the Family Courts Act,
1984. Consequently neither the report of the mediator nor of the counselor
could have been allowed to be exhibited. They are contrary to the mandate of
principles governing the mediation – they undermine party autonomy and
choice; besides, they clearly violate Section 75 of the Arbitration and
Conciliation Act. The observations in the judgment dated February 17, 2017
to the extent it notes that ―the reports of the mediator as also of the
counselor concerning the behavior and attitude of the child, especially when
the mediation process has failed would not fall within the bar of
confidentiality and hence cannot be used in any proceedings…..Such reports
are a neutral evaluation of expert opinion to a Court to guide the Court as to
what orders need to be passed in the best interest of the child. These reports
are not confidential communications of the parties‖ and carving a general
exception to mediation confidentiality in child custody matters and disputes
for which the Family court can seek the assistance of the counselor, under
Section 12 of the 1984 Act, are hereby recalled. We
hasten to add that this judgment is not a
reflection on the mediator whose unstinted track record is known to all, or
the endeavor of the counselor, who too is very experienced in her field. Their
C.M. APPL.42790/2017 42791/2017 IN MAT. APP.(FC) 67/2016 Page 24 of 26
commitment and sincerity to secure a settlement satisfactory to all, and the
mediation process in general, is not doubted; this judgment should in no way
dampen that zeal and determination that they have displayed.
31. To summarize and conclude:
(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
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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.
32. In view of the discussion and conclusions, it is hereby directed 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. The
Court’s option to take appropriate course of action otherwise, under
provisions of the Family Courts Act, 1984 is, however, preserved and kept
open. The review petition is accordingly allowed. There shall be no order on
costs. A copy of this judgment shall be provided dasti to the parties.
S. RAVINDRA BHAT
(JUDGE)
YOGESH KHANNA
(JUDGE)
DECEMBER 11, 2017
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