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Culture of mediation: why has it not picked up in India?

Introduction

Alternate Dispute Resolution (ADR) refers to modes by which disputes may be resolved without taking recourse to the court system. Mediation, among other ADR options, offers voluntary participation, flexibility, confidentiality, speedy and cost-effective solution-finding with the assistance of the mediator, a third party with no stake in the outcome. Litigation prolongs disputes, relationships between parties break down due to the protracted nature of the process and the outcome is determined in favour of only one party. ADR developed as a mode to counteract the less than desirable effects of litigation.


Efficacy of mediation as method

Mediation is useful in matters that “do not involve complex questions of law or evidence (though mediation is being resorted to in complex financial and other disputes of late) and which are not dependent on lengthy procedures for final determination”.1


Mediation as a method of dispute resolution may be applied to a wide range of civil matters and its potential with respect to criminal cases is beginning to be explored. Mediation can help parties resolve disputes within preferred timelines because parties work together to achieve tailored solutions and the compliance with the agreements is voluntary.2 There are presently five ways in which mediation as a dispute resolution process may be initiated:


  1. It may be provided for in dispute resolution clauses in contracts between parties
  2. Reference by the court as given under Section 89 of the Code of Civil Procedure, 1908
  3. Other legislation that provides for mediation as a mode of facilitating resolution3
  4. Mandatory pre-litigation mediation as provided under Section 12A of the Commercial Courts Act, 20154
  5. By mutual consent of parties once the dispute has arisen

Reasons why mediation is not popular despite its efficacy

  • Binding Nature/Enforceability of Settlements

  • Mediation is not yet a mandatory or even widely preferred mode of dispute resolution in the country. One of the many reasons suggested is the possible lack of clarity surrounding the enforceability of mediation settlements.


    India is a signatory (on August 7, 2019) to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention), 20185 which provides for “a harmonized legal framework for the right to invoke mediation settlement agreements.” The Convention provides for the agreements to have binding force worldwide bringing mediation on par with regimes of litigation and arbitration. Though the provisions need to be incorporated within the domestic legal framework in order to gain force, this is a step in the right direction.


    While there is no legislation which provides for mediation settlement agreements to be automatically binding, the Supreme Court in M.R. Krishna Murthi v. The New India Assurance Co. Ltd. and Ors6 asked the Government to consider enacting a statute to remedy the position.


    Where settlements are reached in court-annexed mediations, the court passes an order or decree in terms of the settlement agreed upon7. The preconceptions around weak compliance in private mediation also discourage parties from resorting to mediation.


  • Definitional confusion

  • In the Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. and Ors8 the Supreme Court examined drafting oversights in Section 89 which included semantic confusion around the definitions of “mediation” and “judicial settlement” and the details of the procedure to be followed when referring matters to mediation under Section 89. Despite the 238thLaw Commission Report providing recommendations to seal the lacunae in understanding, there has been no effective implementation.9


  • Lack of Legislation

  • The Mediation Bill, 2021 seeks to provide clarity and codification to mediation as a practicable mode of dispute resolution. It stipulates the professionalisation of mediation as a practice, the binding nature of mediation agreements, the set-up of regulatory bodies for the registration, recognition and laying down of standards of professional conduct for mediators and the establishment of institutes to train and certify potential mediation service providers.10 It aims to institutionalise mediation, to set up the Mediation Council of India and popularise community mediation among other provisions.


  • Training of District Judiciary to refer cases under Section 89, Code of Civil Procedure

  • Even though court-annexed mediation has emerged as a solution due to judgements like Salem Bar Association v. Union of India11, staff and services have been regularised at these centres and institutional mediation is also seen as a viable option12, reports suggest that lower court judges are not incentivised or trained to refer matters under section 89, Code of Civil Procedure. As a consequence of prolonged exposure to the adversarial system, they lack the required objectivity and acumen to determine the possibility of settlement between parties.


  • Lack of awareness in the general public

  • The public is believed to be unaware of the existence of ADR processes. Experts and qualified mediators could be encouraged to make more attempts to reach out to litigants and the general public through seminars, webinars, conferences and outreach programmes that inform and educate the larger community about the benefits of mediation which is more party-centric, party-driven and focused on practical outcomes, unlike litigation.


  • Myths around Mediation

  • Common myths perpetuated by the legal community include the idea that opting for mediation demonstrates weakness of character and the possibility of failure at trial. It is also believed that it is a “lesser form of justice and second to litigation”, where the risks are higher but the rewards are greater for the same reason .13


  • Paucity of Trained and Experienced Mediators

  • It has been acknowledged, by the authorities that be, that despite the overwhelming number of disputes that may be referred to mediation, the present number of empanelled mediators is woefully inadequate. The quality of the training and the lack of domain or subject-specific knowledge encumbers the mediators from resolving commercial and other disputes effectively.



    1https://vidhilegalpolicy.in/wp-content/uploads/2021/03/Mandatory-Mediation-in-India-Resolving-to-Resolve.pdf

    2ibid

    3Statutes include Section 4 of the Industrial Disputes Act, Sections 37-38 of the Consumer Protection Act, 2019, Section 89 read with Order X Rule 1A of the Code of Civil Procedure, 1908, Order XXXIIA of the CPC provides for mediation in family, matrimonial, guardianship, custody, personal and maintenance matters. Section 442 of the Companies Act, 2013 read with Rule 3 of the Companies (Mediation and Conciliation Rules), 2016 also provide for referral of disputes to mediation. The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 also provide for the option of mediation to parties to attempt reconciliation before initiating proceedings among other statutes. Section 30 of the Arbitration and Conciliation Act, 1996 also provides for mediation, alongside other ADR processes during arbitral proceedings to encourage settlement.

    42018 Amendment to the Commercial Courts Act, 2015; the judgement Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 confirmed pre-litigation mediation to be mandatory under the provision.

    5https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements

    6M.R. Krishna Murthi v. New India Assurance Co. Ltd., (2020) 15 SCC 493

    7The Supreme Court in Afcons Infrastructure clarified that where the reference is to a neutral third party on a court reference, even though it will be deemed to be reference to a Lok Adalat, the mediation settlement will be governed by Section 21 of the Legal Services Authorities Act, 1987 and will have to be placed before the court for recording the settlement and disposal. Consequently, in cases referred by courts to mediation, a settlement reached by the parties is not enforceable automatically. Even then, it is unclear how a settlement arrived during pre-litigation mediation or ad-hoc mediation would be enforced if one of the parties reneges on its promises. Applying the regular law of contract to such cases would only result in delays, defeating the entire purpose of resorting to mediation. With so much confusion around enforceability, lawyers hesitate to advise their clients to opt for mediation. https://vidhilegalpolicy.in/wp-content/uploads/2021/03/Mandatory-Mediation-in-India-Resolving-to-Resolve.pdf

    8(2010) 8 SCC 24

    9https://vidhilegalpolicy.in/wp-content/uploads/2021/03/Mandatory-Mediation-in-India-Resolving-to-Resolve.pdf

    10 https://prsindia.org/billtrack/the-mediation-bill-2021

    11(2003) 1 SCC 49

    12https://thewire.in/law/mediation-cji-judges-hyderabad

    13 Gupta, Juhi. 2018. “Bridge over Troubled Water: The Case for Private Commercial Mediation in India.” American Journal of Mediation 11: 59-88

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