Section 22 of Mediation Act 2023 - Confidentiality in Mediation

Section 22 of the Mediation Act, 2023 sets out the statutory confidentiality framework for mediation. It covers mediation communications, documents prepared for mediation, proposals and admissions, prohibits audio or video recording, and restricts the use of protected mediation material as evidence in later proceedings.

Commencement status: Under Section 1(3), different provisions of the Mediation Act, 2023 may be brought into force on different dates. The Central Government notification dated 9 October 2023 brought specified provisions into force, but Section 22 was not among the provisions listed in that notification. The latest official commencement notification should therefore be checked before relying on Section 22 as an operative statutory provision.
Who must maintain confidentiality?Mediator, mediation service provider, parties and participants
Protected materialProposals, admissions, mediation documents and other mediation communications
RecordingsAudio and video recording of mediation proceedings is prohibited
Settlement disclosurePermitted where necessary for registration, enforcement or challenge

Section 22 - Confidentiality

22. (1) Subject to the other provisions of this Act, the mediator, mediation service provider, the parties and participants in the mediation shall keep confidential all the following matters relating to the mediation proceedings, namely:-

(i) acknowledgements, opinions, suggestions, promises, proposals, apologies and admissions made during the mediation;

(ii) acceptance of, or willingness to, accept proposals made or exchanged in the mediation;

(iii) documents prepared solely for the conduct of mediation or in relation thereto;

(iv) any other mediation communication.

(2) No audio or video recording of the mediation proceedings shall be made or maintained by the parties or the participants including the mediator and mediation service provider, whether conducted in person or online to ensure confidentiality of the conduct of mediation proceedings.

(3) No party to the mediation shall in any proceeding before a court or tribunal including arbitral tribunal, rely on or introduce as evidence any information or communication set forth in clauses (i) to (iv) of sub-section (1), including any information in electronic form, or verbal communication and the court or tribunal including arbitral tribunal shall not take cognizance of such information or evidence.

(4) The provisions of this section shall not prevent the mediator from compiling or disclosing general information concerning matters that have been subject of mediation, for research, reporting or training purposes, if the information does not expressly or indirectly identify a party or participants or the specific disputes in the mediation.

Explanation. For the removal of doubts, it is hereby clarified that nothing contained in this section shall apply to the mediated settlement agreement where its disclosure is necessary for the purpose of registration, enforcement and challenge.

What information is confidential?

Section 22(1) protects a broad range of material generated or communicated during mediation. This includes acknowledgements, opinions, suggestions, promises, proposals, apologies, admissions, willingness to accept proposals, documents prepared solely for mediation and any other mediation communication. The obligation is imposed not only on the parties but also on the mediator, mediation service provider and other participants.

No audio or video recording of mediation

Section 22(2) prohibits parties and participants, including the mediator and mediation service provider, from making or maintaining audio or video recordings of mediation proceedings. The prohibition applies whether mediation takes place in person or online and is expressly linked to maintaining confidentiality of the process.

Use of mediation communications as evidence

Section 22(3) restricts a party from relying on or introducing the protected information or communications as evidence before a court, tribunal or arbitral tribunal. The provision expressly extends to electronic information and verbal communications and directs the relevant court or tribunal not to take cognizance of such protected information or evidence.

Research, reporting and training

Section 22(4) permits a mediator to compile or disclose general information about matters that have been mediated for research, reporting or training, but only where the information does not directly or indirectly identify a party, participant or the specific dispute.

Disclosure of mediated settlement agreement

The Explanation to Section 22 clarifies that the confidentiality rule does not apply to a mediated settlement agreement where disclosure is necessary for its registration, enforcement or challenge. The relevant provisions include Section 20 - Registration of mediated settlement agreement, Section 27 - Enforcement of mediated settlement agreement and Section 28 - Challenge to mediated settlement agreement.

Section 23 exceptions and privilege against disclosure

Section 23 supplements the confidentiality framework by dealing with admissibility and privilege against disclosure. Its statutory exceptions include information sought or provided to prove or dispute a claim or complaint of professional misconduct of a mediator or malpractice based on conduct during mediation. It also states that privilege or confidentiality does not attach to specified threats or plans to commit an offence, information relating to domestic violence or child abuse, or statements showing a significant imminent threat to public health or safety.

Related provisions

Section 22 should be read with Section 21 - Non-settlement report, Section 23 - Admissibility and privilege against disclosure, Section 24 - Termination of mediation and the provisions governing registration, enforcement and challenge of mediated settlement agreements.

Official legal sources

For the authoritative statutory text and current commencement position, refer to the official Government of India sources.

Department of Legal Affairs - Mediation Act, notifications and corrigendum

Legislative Department - Ministry of Law and Justice

e-Gazette of India

Legal note: This article is for general legal information. The official Act, commencement notifications, rules, applicable exceptions and relevant judicial decisions should be checked for a particular mediation or proceeding.