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Mediation Report Should Preferably Contain Only One Sentence, Nothing More, to maintain confidentiality
Smriti Madan Kansagra vs Perry Kansagra
C.M. APPL. 42790/2017 & 42791/2017 IN MAT. APP. (FC) 67/2016
About/from the judgment:
Guidelilnes for Mediation process:
(1) Mediation proceedings depend upon maintenance of confidentiality at all times, during and at the end of the proceedings. This constitutes a permanent “dark area” off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception. Mediators therefore cannot file reports especially in the event of failure (of parties to reach a settlement) discussing generally or even in neutral narrative, the position of parties or even without blaming the parties, indicating the reason for failure. It is held that a mediator can report only one outcome: a settlement, if it is agreed to by the parties and the terms of which are written. In all other circumstances, it is hereby declared that no mediation report should contain anything except the report of failure, preferably only one sentence that "the parties could not agree to settle their disputes" or some such language. Nothing more.
(2) Mediators cannot involve experts in the process; if there is any need, they have to require the parties to approach the Court explaining the reason why there is need. In case the mediator feels that involvement of a counselor in family or custodial matters is essential, she or he again has to require the parties to approach the Court. Upon the parties applying in this regard, the Court may, after hearing them, exercise its discretion under Section 12.
(3) In the proceeding or interaction between the parties either singly or together, with the counselor, the mediator should not be present. The communication between the counselor so appointed and the Court should be confidential (as also the report) and it may be shared with the parties under such circumstances as the Court may deem appropriate. It should not be treated as part of the record, in the sense that it becomes the subject of debate or argument during the proceedings, on merits. Here, the Court is at liberty to devise the appropriate procedure, depending upon the exigencies of the case, under Section 10 (3) of the Family Courts Act.
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.
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