Supreme Court erases judge's order for revealing mediation secrets

A judge quoted what a husband and wife said during mediation. The Supreme Court just erased those words from the record.

On a January morning in 2022, a bench of the Supreme Court of India looked at an order passed by the Orissa High Court. In paragraphs 11 and 12, the High Court had reproduced — verbatim — what a warring couple had said to each other during settlement talks. The Supreme Court did not debate whether the High Court's conclusion was right or wrong. It simply ordered those paragraphs struck from the record. Erased. As if they had never been written.

The question was deceptively simple: Can a judge quote what parties say in mediation when passing a final order?

The answer, the Supreme Court said, is no. Never.

When a custody fight reached the High Court

The case — Arjab Jena @ Arjab Kumar Jena v. Utsa Jena @ Pattnaik — began as a matrimonial dispute between a husband and his wife. Like thousands of couples in Indian courts, they were fighting over their child — who gets custody, who gets visitation, and on what terms. The matter had already reached the Family Court in Bhubaneswar, Orissa, where an application for joint custody and visitation rights was pending.

But before the Family Court could decide, the wife approached the High Court of Orissa at Cuttack through a writ petition (a constitutional remedy that lets a person directly ask the High Court for relief when a lower court's delay or decision causes hardship). The High Court passed an order on April 20, 2021, in Writ Petition (Civil) No. 29015/2020. The physical file of that order, when it reached the Supreme Court, carried two offending paragraphs — paragraphs 11 and 12 — that quoted what the husband and wife had said during mediation or settlement proceedings. The husband challenged this before the Supreme Court through a Special Leave Petition (a petition seeking the Supreme Court's permission to appeal against a High Court order).

The confidentiality wall that mediation depends on

Mediation works because parties can speak freely. A husband can admit he was wrong. A wife can express her deepest fears about losing her child. A mediator can suggest compromises that neither side would accept in open court. All of this happens inside a room where the rule is simple: what is said here, stays here. The silence of that room — the closed door, the absence of a court stenographer — is what makes candour possible.

This principle — confidentiality in mediation — is the foundation of the entire process. If parties know their words can be quoted in a judge's order, they will guard every sentence. They will negotiate like lawyers in a courtroom, not like parents trying to figure out what is best for their child. The candour that makes mediation work disappears.

The husband's lawyer argued that the High Court had breached this principle. By reproducing the couple's mediation comments in paragraphs 11 and 12 of its order, the High Court had turned a confidential process into public record. The wife's position on this specific point is not recorded in the Supreme Court's judgment.

Why the Supreme Court erased those paragraphs

The Supreme Court granted leave — meaning it agreed to hear the appeal on its merits — in Civil Appeal No. 151 of 2022, arising from Special Leave Petition (Civil) No. 19259/2021. The bench then examined the High Court order and found that paragraphs 11 and 12 indeed contained comments made during mediation or settlement proceedings. The offending paragraphs sat there on the page, a breach of trust laid out in black and white.

The court held that taking such comments on record "impedes conciliation and impinges upon the principle of confidentiality." In plain language: when a judge writes down what parties said in mediation, it makes future settlement talks harder because no one will trust the process. And it violates the core promise of mediation — that your words will not be used against you later.

The bench did not stop at a warning. It directed that paragraphs 11 and 12 "stand erased from the record." Not expunged, not set aside — erased. The legal equivalent of taking a black marker to those lines. The court also clarified that none of its observations in the order constituted findings on the merits of the custody dispute. The Family Court was free to decide the case on its own, without being influenced by anything the High Court or the Supreme Court had said.

Interim visitation while the Family Court decides

The Supreme Court also had to deal with the immediate problem: the father had not been meeting his child while the legal battle dragged on. The court directed that the father be permitted to interact with the child in the presence of a counselor at the Family Court in Bhubaneswar, starting January 21, 2022. The counselor would sit nearby — a quiet presence ensuring the interaction remained appropriate — while the father and child met, perhaps for the first time in months. This was an interim arrangement — a temporary fix — until the Family Court decided the custody and visitation application.

The Family Court was given a deadline: decide the matter within four months. No extensions, no delays. The file on the Family Court's desk — the custody application, the affidavits, the counsellor's reports — now carried the weight of that deadline.

The procedural journey in full

The case travelled through three forums before reaching the Supreme Court. First, the Family Court in Bhubaneswar, where the application for joint custody and visitation remained pending. Second, the High Court of Orissa at Cuttack, which passed the order in Writ Petition (Civil) No. 29015/2020 on April 20, 2021, remitting the matter back to the Family Court — but unfortunately reproducing mediation comments in paragraphs 11 and 12. Third, the Supreme Court of India, which on January 5, 2022, disposed of the appeal, erased those paragraphs, and passed interim visitation directions.

The only legal provision at the heart of this case was the principle of confidentiality in mediation — a general principle of mediation and conciliation law, not tied to any single statute. The Supreme Court applied this principle as the primary interpretative target, holding that recording mediation comments violates it.

What this means for every mediation in India

This judgment is a short, sharp reminder to every trial court, High Court, and Family Court in the country. Mediation confidentiality is not a suggestion. It is a binding principle. If a judge quotes mediation comments in an order, that part of the order is legally invalid — and the Supreme Court will erase it.

For lawyers and litigants, the lesson is equally clear. If you are in mediation, you can speak freely. The judge who eventually hears your case cannot use your settlement talks against you. And if a judge does, you have a remedy: approach the Supreme Court.

THE PLAY: If a court order quotes what you or your client said during mediation, file an appeal immediately — those paragraphs are legally void under the principle of confidentiality.

The husband and wife are back where they started: in the Family Court, fighting over their child. But the Supreme Court has made sure that what they said in the mediation room stays in the mediation room.