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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 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.

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 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.

http://www.ciarb.org/docs/default-source/ciarbdocuments/guidance-and-ethics/practice-guidelines- protocols-and-rules/mediation/1-guidelines-on-confidentiality-in-mediation.pdf?sfvrsn=4 accessed on 10 December, 2017 at 16:38 hours.

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.

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.