ARGUMENTS

The DDRS argued that the information requested by Singh was provided, even though the same was already available on the Delhi High Court’s website. However, the information in relation to mediation details of the third party was denied because it was confidential information as per the RTI Act. The DDRS brought to the attention of the Commission several other applications that were filed by Singh where information sought by him was provided.

The Commission while deciding the appeal placed reliance on its earlier decision in Rama Aggarwal v PIO Delhi State Legal Service Authority wherein the Commission in relation to Mediation Proceedings observed the following:

“12. As per the UNCITRAL Conciliation Rules, the Conciliator and the parties must keep confidential all matters relating to the conciliation proceedings. Article 14 of Rules says: ‘Subject to agreement of the parties or mandatory law, the provisions prohibit disclosure to outsiders of any matters relating to the conciliation proceedings. Such guarantee of confidentiality is conducive to reaching an proceedings’. Confidentiality extends also the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement. Confidentiality is a merit of mediation. It is also considered as ethics of this dispute resolution process which achieved states as best alternative to litigation. Those whofear the undue publicity, possibility of invasionof privacy and defamation, avoid litigation in court of law, complaint topolice station and prefer a confidential, closed door discussion to sort out the differences and resolving the misunderstandings that threaten the relationship in either business or marriage.”

The Commission then relied on Sections 70, 75 and 81 of the Arbitration and Conciliation Act 1996 which talk about confidentiality in conciliation and mediation proceedings and, also makeevidence of mediation inadmissible in other proceedings.

Further, the Commission analyzed Rule 20 and 21 of the Mediation and Conciliation Rules, 2004. These rules prohibit the mediator/ conciliator from disclosing information given by one party to the other if the party requests that the information provided should be kept confidential. In such a case the information cannot be disclosed. Additionally, the rules provide that the information given by any party to the mediator/conciliator shall be confidential and the mediator/conciliator shall not be compelled to disclose any information as to what transpired during the mediation/conciliation before any Court, Tribunal, any other authority or any person or group of persons. The mediation/conciliation sessions are conducted in privacy.

The Commission was of the view that confidentiality is an integral part of mediation proceedings and is crucial for a successful resolution. The purpose behind confidentiality is that the parties must be assured that they can share sensitive information at the mediation session and, they can be guaranteed that any information provided by them will not be divulged to any other person/authority. Confidentiality plays an important role in mediation proceedings as well as private conferences which the mediator may have with one or more of the parties during the course of mediation.

Reliance was placed on Supreme Court’s decision in Moti Ram v Ashok Kumar wherein it was observed:

“If the mediation succeeds, then the mediator should send the agreement signed by both the parties to the Court without mentioning what transpired during the mediation proceedings. If the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the Court stating that the ‘Mediation has been unsuccessful’. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often, offers, counter offers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process.”

The Commission observed that Section75 of the Arbitration and Conciliation Act 1996, which incorporates the confidentiality clause, provides that 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 extends to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

The Commission said that the provisions of the RTI Act override the Arbitration and Conciliation Act. While saying so, the Commissions examined Section8(1)(e) and Section8(1)(j) of the RTI Act which provides that information made available to a person in his fiduciary relationship and information which pertains to personal information are exempted from disclosure under the Act. The Commission observed as follows:

“Larger public interest is an exception for these two exemptions. But in the interest of conciliation in general as an alternative dispute proceeding there is a need to protect the confidentiality. The moment the proceedings of the mediation are allowed to be disclosed in the form of certified copies under RTI Act, or evidence in other proceedings or publicized openly, the parties will not prefer mediation or conciliation, which will increase pendency, stress and burden on the courts besides delaying the marital dispute resolutions affecting several families. Even the parties would lose possibility of resolving. Mediation is best alternative dispute resolution process for domestic disputes, only because the parties cannot use this proceeding for obtaining the material to use in litigation. Mediation process cannot be used by parties as pre-litigation step to collect material.”