Admissibility of Confidential Information in Domestic Courts: Examining a Pitfall in Singapore Mediation Convention

By: Arun Nachiappan (Symbiosis Law School, Pune)


Introduction

The code of conduct for mediators plays a significant role as far as any mediation is concerned. Ultimately, they are expected to be fair and reasonable while making proposals to settle the matter. In such a scenario, any mediator who engages in international mediation subscribes to the code of conduct or ethics identifiable by the parties to the agreement by enumerating such ethical standards in the agreement itself. However, currently, there is not any universal code of conduct for the mediators provided under The Singapore Convention (Hereinafter referred to as “The Convention”), which gives rise to an ultimate issue of interpreting the conduct of the mediator by the domestic courts, in the event of a question of partiality or even disclosure of confidential information. In light of the issue mentioned above, this article intends to examine the approaches of different nations towards interpreting Article 5 vis-à-vis domestic evidence laws to determine the admissibility of evidence to prove the misconduct.

Analysis

Whether the convention poses an issue for the domestic legislators in terms of admissibility of evidence in relation to proceedings for the mediator’s misconduct?    

Insights into provisions on mediator’s misconduct under the convention

A complex provision under the convention makes direct enforcement difficult for contracting governments. If mediators commit “serious breaches” of the appropriate standards and code of conduct, enforcing MSAs could be prohibited under Article 5(1)(e) of the convention.  Similarly, as per Article 5(1)(f) of the convention, if the mediator fails to disclose relevant information to the parties, raising “justifiable doubts” about the mediator’s impartiality, the party cannot enforce the settlement agreement.

The adjective such as “serious breach” highlighted herein could be construed in any sense, such as the licensing regime of the mediator or even the location of the mediation. However, any such standards not determined and applied while mediating could never be applied retroactively at the time of enforcement, which in turn poses an immense issue. Similarly, the term “justifiable doubt” could be construed in any sense, such as determining whether a reasonable man would have settled the issue in a similar way. However, in this case, the burden is on the party, who intends to enforce to prove that there was a casual and legitimate relationship between the settlement proposal and the non-disclosure, which would ultimately be interpreted in either way by the domestic courts.     

Also, several governments around the world have enacted laws protecting the confidentiality of mediation. For example, Section 75 of the Arbitration and Conciliation Act of 1996 in India requires parties and residing authorities to keep settlement agreements and communications confidential. According to the Supreme Court in Moti Ram(D) Tr. Lrs. & Anr v. Ashok Kumar, if mediation is successful, the party’s settlement agreement must be filed with the court, but any communications between them during the mediation must be kept confidential. But how can the resiling party establish the mediator’s misconduct/grave violation without disclosing confidential information?

So, it’s important to compare Evidence codes from different countries to examine the practical application of Article 5.

UK’s Perspective

Since 2007, parties have successfully used mediation evidence to support a variety of petitions. Notably, one party endorsed a claim for compensation based on another’s outrageous conduct at a mediation. Thus, in the United Kingdom, the trend has been to support admitting evidence into courts by viewing mediation as merely “assisting parties without prejudice negotiations,” which can be accomplished either by parties waiving the privilege or by claiming the exceptions set out by Walter. J in Unilever PLC v. Procter & Gamble Co., one of which is that if the evidence is prohibited from entry, it acts as perjury, blackmail, or other forms of perjury.

The Court of Appeal in Ferster v. Ferster found that an email sent by the other party to the mediator for forwarding to him constituted a blackmail threat and may be used as evidence in an unfair prejudice litigation brought by a shareholder. However, it was noted in Forster v. Friedland C.A. that it could only be used in cases of abuse of privileged situations

US’ Perspective

In the US, the decisions might portray a different/opposite view of the courts in the UK. The Supreme Court of California, not in one, but in two cases, wherein in the case of Cassel v. Superior Court citing Wimsatt v. Superior Court, it was stated thatit is at the option of the clients to mediate in order to arrive at a settlement. When they do so, it would be assumed that they have relinquished all the other claims for independent torts, even against their own legal counsel, on the grounds of malpractices. The intention of the legislature has been very strict in mandating that the attorney/client communication privilege in mediation shall be confidential.

Similarly, recently in the case of Pappas v. Chang, wherein when a plastic surgeon is sued for malpractice, which is settled through mediation for $100,000, Pappas had refused to sign the agreement that protects the confidentiality of the agreement on the grounds that the damages were divided into $70,000.01 and $29,999.99 which would be paid by Chang and her carrier respectively. It is because Pappas was under the impression that Chang was trying to prevent this information from reaching California Medical Board, as any damages over $30,000 have to be reported to the Board. But the court, on the other hand, stated that regardless of damages going beyond $30,000 or not, when an issue is settled through mediation, the terms and conditions of the agreement are always confidential, and the court has rightly favoured the claims of Chang.     

Indian Perspective

Although it was observed in Rama Agarwal v. PIO, Delhi State Legal Service Authority, that there is no way to obtain information on mediation processes under the 2005 Right to Information Act, 2005 and similarly by the apex court in Moti Ram(D) Tr. Lrs. & Anr v. Ashok Kumar, which stated that “it is significant on the part of the mediator to mention the outcomes of the mediation and also he/she is obliged not to disclose the what transpired during the meeting”.

The Indian perspective can be understood by the case of Perry Kansagra v. Smriti Madan Kansagra, where the main issue between husband and wife is child custody. The appellant-husband has repeatedly requested custody of the child, which the respondent-wife has refused. However, the appellant filed a successful guardianship petition, which was appealed. The mediator and counsellor spoke with the child and eventually produced a report. The father wanted to talk to the child based on the counsellor’s report, which the respondent said was confidential. Although mediation settlements and communications are confidential, the court found that if a report may be used to resolve child custody issues, such records could be taken and considered.

Recommendation

As was widely discussed in the previous parts, a serious breach of mediators is determined differently across various jurisdictions; thereby, it demands a uniform code of conduct that is capable of bringing harmonisation.      

As far as immediate implementation is concerned, it seems unlikely that a formal code of conduct for the Singapore Convention will be drawn up.  States can make smaller efforts by unifying national codes of conduct. Coordination among dispute-resolution institutions, such as the International Mediation Institute Code of Professional Conduct, could also help foster coherence.

Conclusion

The UK could easily adopt the Singapore Convention, as enforcing Article 5 appears to be straightforward. In the US, if the Singapore Convention is to be ratified, the California Evidence Code will need to be changed according to the views of courts and legislators. In fact, there was a discussion initiated by Assembly member Wagner about removing the privilege of client-attorney mediation contact in the context of an action for malpractice, breach of fiduciary duty, or State Bar disciplinary action. However, it was put to rest after the courts in the US took a firm stand on maintaining confidentiality as an essential ingredient of mediation. In India, however, it does state that confidential information may be used in exceptional circumstances, in the public’s interest, leaving the issue to the courts to interpret. Due to the diversity of approaches to privilege/confidentiality, proving claims under Article 5.1(e) and (f) as well as the entire Article 5 will be difficult.

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