The Commission having perused the file found that the file is a proceeding for counselling, a prelude to or part of conciliation. The conciliation in general will include the counselling also. The mediator or conciliator will advise or guide or apprise the parties of the issues or steps that help resolving the dispute. When there is a counselling between a person and counsellor, there emerges fiduciary relationship. Appellant has already filed a case for domestic violence. Wife claimed that proceeding before legal service authority was in the nature of divorce proceeding. From the nature of proceedings it is apparently clear that it was not divorce proceeding, but a counselling and conciliation proceeding, confidentiality of which need to be protected as per the law and in public interest. Information regarding negotiation, mediation, conciliation and counselling will fall under exempted clause of information given in fiduciary capacity and also private/personal information of other spouse and hence shall not be disclosed. Hence the appeal is rejected.
Central Information Commission
Mrs rama Aggarwal vs Department Of Legal Affairs on 8 August, 2015
CENTRAL INFORMATION COMMISSION
CENTRAL INFORMATION COMMISSION
2. Appellant through his RTI application sought information with regard to case of Rama Agarwal before Delhi Legal Aid, copy of detail proceeding, copy of complaint, copy of hearing on 29.6.2010 etc. CPIO replied that information sought on point no. 1 & 3 is confidential. First appellate authority upheld PIO reply. Appellant approached the Commission. Appellant claimed that her story was a prolonged struggle knocking the doors of almost every forum of justice. She married to Anil Aggarwal in 1983 and two children were born out of this wedlock. She alleged that she was confined in a private mental asylum forcibly, and released after her daughter's complaint, and again she was forcibly taken to IHBAS institute and kept on strong medicines. She was referred to counselling under Delhi State Legal Services Authority. She is seeking copy of details of the proceedings of the case under DSLSA. Appellant says she those details are most required in her Domestic Violence and Divorce cases pending at Patiala House Courts.
Proceedings Before the Commission:
3. Appellant sought to have details of the proceedings about conciliation of dispute involving her. Respondent officer stated that according to Rule 20 Mediation & Conciliation Rules, proceedings of mediation and conciliation cannot be obtained and cannot be used for any purpose other than achieving conciliation.
Relevance of Conciliation in marital disputes
4. Conciliation is a process that attempts to resolve disputes by compromise or voluntary agreement. In contrast with arbitration, the mediator/conciliator does not bring in a 'binding award', and the parties are free to accept or reject the recommendation of the conciliator.
5. If a third party is asked to involve informally, the process can be called mediation. Whether there is any law or not, mediation can be resorted if both the sides of disputants agree on to resolve with the assistance of mediator. Final conclusion of mediation could be enforced or not enforced based on the consent of parties. Generally the mediator will not here or decide any case or give any judgment. He only facilitates the settlement between disputing parties by helping them in understanding the issues involved. Conciliation and mediation are generally interchangeable expressions.
6. Conciliation is recognized by law as one of the methods of dispute resolution and provides for it under various statues. The Code of Civil Procedure (CPC) in Order 32A provides for conciliation between the parties. After amendment, Section 89 of CPC provided a strong base for court sponsoring the conciliation process with the support of a proactive judge, who finds the conciliators and directs the parties to them, as a matter of statutory obligation.
7. This method was recognized and practically found useful as quite appropriate process to tackle marital problems, where legal, procedural, evidentiary and technical issues of rights of parties take a secondary seat and possible welfare of children, peace of the parties or the need to protect the relationship in 'marriage' is given priority unless there are compelling reasons to dissolve the marriage. Even for a peaceful separation, conciliation, as a pre condition for mutual consent divorce application, is considered as a practical problemsolving approach.
8. The process of conciliation received statutory recognition in the CPC (O XXXIIA Rule 3), in Industrial Disputes Act (s 12) and the Hindu Marriage Act 1955 (s23). Hindu Marriage Act and Conciliation:
9. Under amended Hindu Marriage Act 1955 (HM Act), the approach of the courts towards family disputes is different from that of other ordinary civil proceedings. Conciliation is preferred as the first resort by the courts. Another important feature is that speedy trial is prescribed as a preferred mode of resolution of disputes.
10. Section 23 (2) says that before proceeding to grant any relief under HM Act, it shall be the duty of the court, in the first instance, in every case where it is possible to do so, consistently with the nature and circumstances of the case to make every endeavor to bring about reconciliation between the parties. However, reconciliation cannot be resorted to when the relief of divorce is claimed, based on grounds of conversion, unsound mind, virulent disease, venereal disease, renouncing the world by entering religious order, missing for seven years, [s 13(ii) to (vi)]. These grounds are irreconcilable as per proviso under s 23(2) of the HM Act.
11. There is a prohibition on publication of proceedings in family cases. The HM Act 1955 was amended in 1976 wherein provided for in camera proceedings, under s 22, if desired by the parties and imposed a prohibition on publication of family proceedings except the judgment of the high court or Supreme Court printed or published with the previous permission of the court. If any person prints or publishes any matter in contravention of the provisions of s 22(1) he shall be punishable with fine, which may extend to 1000 rupees. Section 21B is added to facilitate daytoday hearing, of marriage disputes, for quick disposition. Confidentiality of Conciliation proceeding:
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 amicable settlement in informal 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 who fear the undue publicity, possibility of invasion of privacy and defamation, avoid litigation in court of law, complaint to police 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 ARBITRATION AND CONCILIATION ACT, 1996
13. The Arbitration and Conciliation Act 1996, has provided for confidentiality norm for conciliation/mediation proceedings and also made the evidence of mediation no admissible in other court proceedings.
70. Disclosure of information.
When the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate: Provided that when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party.
Notwithstanding anything contained in any other law for the time bring 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;
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.
MEDIATION AND CONCILIATION RULES, 2004
14. Rule 20 : Confidentiality, disclosure and inadmissibility of information.
(a) When a mediator/conciliator receives factual information concerning the dispute(s) 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 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 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. Rule 21 : Privacy.
The Mediation/conciliation sessions or meetings would be conducted in privacy where the persons as mentioned in Rule 12 shall be entitled to represent parties. However, other persons may attend only with the permission of the parties and with the consent of the mediator/conciliator.
Confidentiality is at the heart of a mediation proceedings and is critical to a successful resolution. The parties must be assured that they can share sensitive information at the mediation session, where it is necessary to see that their true needs and interests may be met, without fear of subsequent disclosure to their detriment. Such confidentiality plays an important role both in the joint sessions involving all of the disputants at the mediation session as well as in private caucuses which the mediator may have with one or more of the parties during the course of the session. This is the rule worldwide.
Supreme Court assures confidentiality
15. The Supreme Court assured the confidentiality of the process in two judgments. In Moti Ram(D) Thr. L.Rs. and Anr. Vs. Ashok Kumar and Anr., Markandey Katju and Gyan Sudha Misra JJ, explained:
In this connection, we would like to state that mediation proceedings are totally confidential proceedings. This is unlike proceedings in Court which are conducted openly in the public gaze. 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."
16. The Supreme Court said in yet another case of Haresh Dayaram Thakur Vs. State of Maharashtra and Others, AIR 2000 SC 2281, D.P. Mohapatra and RP Sethi, JJ said:
Section 67 which makes provision regarding role of conciliator provides in Subsection (I) that the conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. In Subsection (2) thereof, it is provided that the conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute including any previous business practices between the parties. In Subsection (4) of Section 67 it is laid down that the conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefore. Section 69 contains the provision regarding communication between conciliator and parties whether orally or in writing and about the place of meeting etc. In Section 70 provision is made regarding disclosure of information. Therein it is provided, inter alia, that when the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate. In the proviso to the section it is stated that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party. Under Section72 it is laid down that each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.
Section 75 which incorporates in the status 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 shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement. RTI Act v A&C Act
17. The RTI Act will definitely override the Arbitration & Conciliation Act 1996 and information has to be disclosed subject to RTI Act. Even under RTI Act, we need to examine the provisions of exceptions under Section (8) of the RTI Act, 2005 that enlists some special instances when the authorities are exempted from disclosing information sought for. Section 8 (1) (e) of the RTI Act, 2005 exempts from disclosure information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
18. The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. Anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary capacity. Therefore communication made during conciliation proceeding between the parties and also communication between mediator and other parties, qualifies to be made in fiduciary capacity. The proceedings of Mediation are supposed to be protected under Section 8(1)(j) also, which says:
"information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person".
Larger public interest is an exception for these two exemptions. But in the interest of conciliation in general as an alternative dispute proceedings 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 prelitigation step to collect material. If RTI is allowed to be exercised in securing information about mediation, cantankerous spouse will exploit mediation as a source to get information with which they can harass the other spouse and use it in courts of law also. Thus the public interest in disclosure of the information, if any, is not higher than that in protection of mediation proceedings as per Section 8(2). Comparatively there is a higher public interest in protecting the confidentiality and privacy of the proceedings of mediation and there is no public interest in disclosure. Hence under Section 8(2) information about mediation proceedings cannot be given. As there is no larger public interest, the mediation information attracts provisions of exemptions under Section 8(1) (e) and (j). Hence cannot be disclosed. Decision:
19. The Commission having perused the file found that the file is a proceeding for counselling, a prelude to or part of conciliation. The conciliation in general will include the counselling also. The mediator or conciliator will advise or guide or apprise the parties of the issues or steps that help resolving the dispute. When there is a counselling between a person and counsellor, there emerges fiduciary relationship. Appellant has already filed a case for domestic violence. Wife claimed that proceeding before legal service authority was in the nature of divorce proceeding. From the nature of proceedings it is apparently clear that it was not divorce proceeding, but a counselling and conciliation proceeding, confidentiality of which need to be protected as per the law and in public interest. Information regarding negotiation, mediation, conciliation and counselling will fall under exempted clause of information given in fiduciary capacity and also private/personal information of other spouse and hence shall not be disclosed. Hence the appeal is rejected.
(M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Deputy Registrar Addresses of the parties:
1. The CPIO under RTI, Delhi State Legal Services Authority, Central Office, Patiala House Courts Complex, New Delhi110001.
2. Ms. Rama Aggarwal, 1237, SecD Pkt, Vasant Kunj, New Delhi.