Section 23 of Mediation Act 2023 - Admissibility and Privilege Against Disclosure
Section 23 of the Mediation Act, 2023 protects mediation communications from compelled or permitted disclosure in courts, tribunals and other adjudicatory proceedings. It also specifies important exceptions where privilege or confidentiality does not apply.
Section 23 - Admissibility and privilege against disclosure
23. (1) No mediator or participant in the mediation, including experts and advisers engaged for the purpose of the mediation and persons involved in the administration of the mediation, shall at any time be permitted, or compelled to disclose to any court or tribunal, or in any adjudicatory proceedings, by whatever description, any communication in mediation, or to state the contents or conditions of any document or nature or conduct of parties during mediation including the content of negotiations or offers or counter offers with which they have become acquainted during the mediation:
Provided that nothing in this section and section 22 shall protect from disclosure, information sought or provided to prove or dispute a claim or complaint of professional misconduct of mediator or malpractice based on conduct occurring during the mediation.
(2) There shall be no privilege or confidentiality that will attach to-
(a) a threat or statement of a plan to commit an offence punishable under any law for the time being in force;
(b) information relating to domestic violence or child abuse; and
(c) statements made during a mediation showing a significant imminent threat to public health or safety.
Meaning of privilege against disclosure
Section 23(1) protects the confidentiality of the mediation process by preventing the mediator and participants from being permitted or compelled to reveal protected mediation material in a court, tribunal or other adjudicatory proceeding. The provision expressly includes experts, advisers and persons involved in administering the mediation.
What material is protected?
The protection extends to mediation communications, the contents or conditions of documents, the nature or conduct of parties during mediation, negotiations, offers and counter-offers that become known to the mediator or participants through the mediation process.
Professional misconduct and malpractice exception
The proviso to Section 23(1) creates an exception to Sections 22 and 23 where information is sought or provided to prove or dispute a claim or complaint of professional misconduct by a mediator, or malpractice based on conduct occurring during mediation. The confidentiality provisions therefore cannot be used to shield the specified misconduct or malpractice inquiry from relevant disclosure.
When privilege and confidentiality do not apply
Section 23(2) identifies three categories to which privilege or confidentiality does not attach:
- a threat or statement of a plan to commit an offence punishable under any law for the time being in force;
- information relating to domestic violence or child abuse; and
- statements made during mediation showing a significant imminent threat to public health or safety.
Relationship with Section 22
Section 22 - Confidentiality identifies categories of mediation material that must generally be kept confidential, prohibits audio and video recording of mediation proceedings, and restricts use of protected communications as evidence. Section 23 complements that framework by creating privilege against disclosure while expressly defining circumstances in which the protection does not apply.
Related provisions
Section 23 should be read with Section 21 - Non-settlement report, Section 22 - Confidentiality, Section 24 - Termination of mediation and other applicable provisions of the Mediation Act, 2023.
Official legal sources
Department of Legal Affairs - Mediation Act, notifications and corrigendum
India Code - The Mediation Act, 2023