Confidentiality in ADR: What Is Protected and What Is Not

Confidentiality is one of the most practically important features of ADR — and one of the most frequently misunderstood. "Private" and "confidential" are different things, and the protection varies significantly depending on which process is used. ## Mediation: statutory confidentiality **Who is bound.** The confidentiality obligation applies to the parties, their lawyers and representatives, the mediator, and any other person involved in the mediation (including interpreters, experts, and administrative staff of any mediation institution). **Statutory exceptions.** The Act creates narrow exceptions permitting disclosure where: - Disclosure is necessary to prevent physical harm to a person or prevent a crime - Disclosure is required to prevent or detect child abuse or neglect - Disclosure is needed to enforce or challenge a mediated settlement agreement - Disclosure is permitted by both parties' written consent **The mediator's separate obligation.** Mediators have an independent duty not to disclose any information obtained in a private caucus to the other party without the disclosing party's consent, even during the mediation itself. ## Conciliation: statutory protection Conciliation communications are protected under Sections 75–76 of the Arbitration and Conciliation Act, 1996, which prohibit parties and the conciliator from relying in any subsequent arbitral or judicial proceedings on views expressed, admissions made, or settlement proposals put forward during conciliation. The conciliator also cannot be called as a witness in any subsequent proceeding. ## Arbitration: private but not automatically confidential This is the most important distinction practitioners miss. Arbitration hearings are private — they are not open to the public — but Indian law does not impose automatic confidentiality on arbitral proceedings or awards. There is no provision in the Arbitration and Conciliation Act, 1996 equivalent to the mediation or conciliation confidentiality provisions. In practice, this means: - A party can potentially disclose information from arbitral proceedings unless bound by a contractual confidentiality obligation - The arbitral award itself may be referred to in court proceedings challenging it - Institutional rules vary — some institutions impose confidentiality on proceedings administered under their rules; others do not **Practical implication:** any commercial contract with an arbitration clause should include an express confidentiality clause covering the proceedings, the award, and information exchanged in the arbitration. ## Lok Adalat Lok Adalat proceedings are informal and not expressly governed by a statutory confidentiality framework comparable to mediation. The proceedings are held in public (or quasi-public) settings. For matters where confidentiality is important, Lok Adalat is a weaker choice than mediation or conciliation. ## Why confidentiality matters in practice Confidentiality changes what parties are willing to say. In a mediation, a party can acknowledge that their legal position is weaker than they've let on, or offer something they would never put in a letter, precisely because those communications are protected. This candour is often what allows mediations to settle where direct negotiation or litigation cannot — and it disappears entirely if parties are not confident the protection is real and legally enforceable.