TMI Blog2019 (2) TMI 1968X X X X Extracts X X X X X X X X Extracts X X X X ..... r of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified. There is, however, one aspect which must also be considered and that is who is the Counsellor within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that Under Section 6 the counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present case was not the one who was appointed in terms of Section 6 but was appointed by a committee of the High Court and her assistance had been requested for in connection with many matters - The report given by the Counsellor in the present case cannot, therefore, be eschewed from consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in the judgment under appeal, the High Court went on to observe that the Counsellor was well experienced and known for her commitment and sincerity to secure a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant along with paternal grandparents were permitted to meet Aditya for 2 hours on Friday, Saturday and Sunday in the 2nd week of every month. According to the Appellant he flew from Nairobi to New Delhi every month to meet Aditya along with the paternal grandparents. In view of the pendency of the guardianship petition, CS (OS) No. 1604 of 2012 was disposed of by the High Court on 31.08.2015, leaving the parties to place their grievances before the Family Court. The arrangement of visitation was thereafter modified by the Family Court by its orders dated 09.02.2016 and 09.03.2016. 6. On 18.04.2016, an application was filed by the Appellant praying that the Family Court may direct the Court Counsellor to bring Aditya to the Court for an in-chamber meeting, which prayer was objected to by the Respondent. After hearing both sides, the Family Court allowed said application vide Order dated 04.05.2016, and directed that Aditya be produced before the Court 07.05.2016. The relevant part of the Order was as under: ...The court is parens patriae in such proceedings. Petitioner's visitation with the child is anyway scheduled for 07.05.2016. Let the child be produced before the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and a remarkable capacity of expressing himself with clarity. He exhibits no sign of confusion or nervousness at all. 4. We also note that the child was comfortable in his interaction with his father and grandparents in court. The child has expressed happiness at his visitations with his father and grandparents. He unreservedly stated that he looks forward to the same. Master Aditya Vikram Kansagra is also able to identify other relatives in Kenya and enthusiastically refers to his experiences in that country. It is apparent that the child has bonded well with them. 5. We must note that the child is at the same time deeply attached to his mother and Nani. His bearing and personality clearly bear the stamp of the fine upbringing being given to him by the Appellant and her mother. 6. As of now, since 9th February, 2016, the child is meeting his father and grandparents between 10:30 am and 05:00 pm on Saturday and Sunday in the second week of every month and for two hours on Friday in the second week of every month. The visitation is supervised as the court has appointed a Counsellor who has been directed to remain present throughout the visitation. 9. During the ensuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppily talking about a recent vacation in Kashmir with his mother. The child was not uncomfortable with the idea of making a trip to Kenya. ... ... ... ... ...... ... 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, counter 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 sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the parties during trial , the High Court concluded that the reports of the Mediator and the Counsellor ..shall be disregarded by the family court, when it proceeds to decide the merits of the case . During the course of its discussion, the High Court noted Delhi High Court Mediation and Conciliation Rules, 2004; Format of application of SAMADHAN (the Delhi High Court Mediation and Conciliation Centre); Conciliation Rules of UNCITRAL; Sections 75 and 81 of the Arbitration and Conciliation Act, 1996; Mediation Training Manual issued by the Mediation and Conciliation Project Committee, Supreme Court of India and Chartered Institute of Arbitrator's Rules mandating confidentiality in matters pertaining to mediation and observed as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this position the fact that a mediator in a given case, proposes-for all the best and bona fide reasons, the involvement of a counsellor, 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 appropriate orders: the Court would then refer them to the counsellor. 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 counsellor that her report would be given to the court. The third unusual feature is that in at least two sittings with the counsellor, the mediator was present. This joint proceeding is, in the opinion of the Court, unacceptable. It can lead to undesirable consequences, especial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 Code of Civil Procedure, 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 counsellor 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 counsellor 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 counsellor concerning the behavior and attitude of the child, especially when the mediation process has failed would not fall within the bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfidentiality and the Respondent had objected to the use of the reports at the first instance; (vi) the earlier order being based on a misconception of law, the High Court was right in exercising review jurisdiction. 13. The issues that arise for our consideration can broadly be put under two heads: a) Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment and b) Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor in this case were part of confidential proceedings and no party could be permitted to use the same in any court proceedings or could place any reliance on such reports. 14. As regards the first issue, relying on the decisions of this Court in Inderchand Jain (dead) through L.Rs. v. Motilal (dead) through L.Rs. (2009) 14 SCC 663, Ajit Kumar Rath v. State of Orissa and Ors. (1999) 9 SCC 596 and Parsion Devi and Ors. v. Sumitri Devi and Ors. (1997) 8 SCC 715, it was submitted by the Appellant that the exercise of review jurisdiction was not warranted at all. In Inderchand Jain (2009) 14 SCC 663 it was observed in paras 10, 11 and 33 are as under: 10. It is beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3)(f) of the Administrative Tribunals Act, 1985.... Similarly, in Parsion Devi (1997) 8 SCC 715 the principles were summarized as under: 9. Under Order 47 Rule 1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review Under Order 47 Rule 1 Code of Civil Procedure. In exercise of the jurisdiction Under Order 47 Rule 1 Code of Civil Procedure it is not permissible for an erroneous decision to be reheard and corrected . A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise . 15. On the other hand, reliance was placed by the Respondent on the decision in Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors. (2005) 4 SCC 741 to submit that exercise in review would be justified if there be misconception of fact or law. Para 90 of said decision was to the following effect: 90. Thus, a mistake on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to ensure that persons committed to the need inter alia to promote the welfare of children and to promote settlement of disputes by conciliation and counselling, are selected. Under Section 6 counsellors can be appointed by the State Government in consultation with the High Court. Section 7 deals with jurisdiction and under sub Clause (g) of Sub-section (1) the jurisdiction extends in relation to guardianship issues, or the custody of, or access to, any minor. Section 9 deals with duty of Family Court to make efforts for settlement and empowers the Court, subject to any Rules made by the High Court, to follow such procedure as may be deemed fit. Section 10 deals with procedure generally and states inter alia that Family Court can lay down its own procedure with a view to arrive at a settlement. Section 12 deals with assistance of medical and welfare experts and Section 20 gives overriding effect to the Act. Section 21 enables the High Court to frame Rules which may inter alia provide for efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement . The relevant Sections being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. 8. Procedure to be followed to arrive at a settlement (i) In every suit or proceeding the Judge may, at any stage, direct the parties to attend a counsellor with a view to promote conciliation and to secure speedy settlement of disputes. (ii) The parties shall be bound to attend the counsellor on the date and time fixed by the Judge. (iii) The counsellor may require the parties or any one of them to appear on a date and time fixed for further counselling. In case any of the parties fails to appear, the counsellor may report the matter to the Judge and the Judge shall pass such orders including awarding of costs, as the circumstances of the case may require. The Judge may nevertheless require the counsellor to submit a report. (iv) The counsellor, in the discharge of his duties may: (a) Pay visits to the homes of both or any of the parties. (b) Interview, relatives, friends and acquaintances of the parties or any of them. (c) Seek such information from the employer of any of the parties, as may be deemed necessary. (v) With the prior permission of the Judge the counsellor may: (a) refer the parties to an expert in other areas, such as medicine or psyc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the matrimonial offence. (xvi) Even after passing of the decree or order the Judge may require the counsellor to supervise the placement of children in custody of a party and to pay surprise visits to the home where the child resides. In case any alternation is required in the arrangements the counsellor will make a report to the Judge. The Judge may after notice to the parties pass such orders as Judge may deem fit. (xvii) The Judge may require the counsellor to supervise, guide and/or assist reconciled couples, even after the disposal of the case for such further period as the court may order. (xviii) On a request received from the counsellor the Judge may issue process to any person to appear before the counsellor at such place, date and time as may be desired by the counsellor. 20. Since reliance has been placed on various other statutory provisions to bring home the issue regarding confidentiality in mediation process, some of those provisions are also extracted herein: [A] Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 are to the following effect: 75. Confidentiality - Notwithstanding anything contained in any other law for the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil courts or other special tribunals/forums) are normally suitable for ADR processes: (i) All cases relating to trade, commerce and contracts, including disputes arising out of contracts (including all money claims); disputes relating to specific performance; disputes between suppliers and customers; disputes between bankers and customers; disputes between developers/builders and customers; disputes between landlords and tenants/licensor and licensees; disputes between insurer and insured; (ii) All cases arising from strained or soured relationships, including disputes relating to matrimonial causes, maintenance, custody of children; disputes relating to partition/division among family members/coparceners/co-owners; and disputes relating to partnership among partners. (iii) All cases where there is a need for continuation of the pre-existing relationship in spite of the disputes, including disputes between neighbours (relating to easementary rights, encroachments, nuisance, etc.); disputes between employers and employees; disputes among members of societies/associations/apartment owners' associations; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced by the Respondent on the decisions mentioned above and some statutory provisions including procedural norms in different jurisdictions to submit that there must be absolute confidentiality in respect of any statements made during the course of mediation. The Appellant, however, relies upon Sub-rule (viii) of Rule 8 of the Rules in support of the submission that in relation to matters, inter alia, of custody or guardianship of any child or children, the Counsellor could be asked to submit to the Judge a report relating to home environment of the parties concerned, their personalities and their relationship with the child and or children in order to assist the Judge in deciding the questions involved in the matter. 24. We, thus, have line of cases dealing with mediation/conciliation and other proceedings in general and Rule 8 of the Rules dealing inter alia, with custody issues which is in the nature of an exception to the norms of confidentiality. It is true that the process of mediation is founded on the element of confidentiality. Qualitatively, Mediation or Conciliation stands on a completely different footing as against regular adjudicatory processes. Instead of an adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cality ought not to stand in the way. Sub-rule (viii) of Rule 8 seeks to achieve that purpose and makes such material available for the assessment of the court. The observations of this Court in Ashish Ranjan v. Anupma Tandon and Anr. (2010) 14 SCC 274 have crystallized the approach to be adopted in matters concerning custody or guardianship issues. Paras 18 19 of the decision are as under: 18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the moral and ethical welfare of the child must also weigh with the court as well as his physical well-being . The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice. This departure from confidentially is consistent with the underlined theme of the Act in general and Section 12 in particular. Once there is a clear exception in favour of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified. In our view, the High Court considered the matter in correct perspective in paragraphs 17 to 20 of its judgment dated 07.02.2017. 29. There is, however, one aspect which must also be considered and that is who is the Counsellor within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that Under Section 6 the counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present case wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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