The Transformative And Innovative Power Of Mediation - Resolving Conflicts Beyond The Courtroom

Author: LawSphereX

Category: Arbitration & ADR

Published: 2026-08-23T21:33:20.626347+00:00

Updated: 2026-08-26T17:05:17.972+00:00

THE TRANSFORMATIVE AND INNOVATIVE POWER OF

MEDIATION: RESOLVING CONFLICTS BEYOND THE

COURTROOM

Apoorva Bhardwaj, Research Scholar, Faculty of Law, University of Lucknow, Lucknow Dr. Rakesh Kumar Singh, Professor, Faculty of Law, University of Lucknow, Lucknow

ABSTRACT

Effective implementation of Alternative Dispute Resolution mechanism is the need of hour to tackle the issue of the huge pendency in the courts. Mediation, a form of Alternative Dispute Resolution is one of the most promising developments in modern dispute resolution mechanism. Although it is not a new kid on the block; this mechanism exists from classical Indian History to various legal statutes of India. But a dedicated legislation has been brought up recently in 2023. This article explores the growth of mediation and features of Mediation Act 2023. Additionally, it highlights the advantages of Mediation over Litigation and the future of mediation that is e-mediation. The final section addresses the need for proper implementation of new law and overcoming the challenges facing by mediation. A lot has been done, a lot remaining. Much has been accomplished, but much remains to be done.

Overall, mediation is a powerful and innovative tool of dispute resolution mechanism. Success, however, require a thoughtful evaluation of its potential benefits and challenges. Keywords: Alternative Dispute Resolution, Mediation, Litigation, e- Mediation

INTRODUCTION

“An ounce of Mediation is worth a pound of Arbitration and ton of Litigation”. Joseph Gymbaum The best way of resolving a conflict is “Samvaad” which means communication. A meaningful communication done with the intent to dilute disagreements and find a solution often leads to success. Disagreements are inevitable when people live or work together. The best option is to solve them by their own but when things seem insoluble, then it is better to allow an unbiased authority to try its hand. The role of a third person begins here. Generally, when we think about resolving disputes, the first name comes to our mind is ‘Court’ -the torchbearer of justice. Litigation is the method which has consistently been working as a facilitator. This has long served as a sole solution to the problem. This prompts the question: what necessitated the emergence of Alternative Dispute Resolution?

Law and society are interdependent. Law is influenced by society and society is ever evolving so the law is. Just like society crime has its long existence, still evolving and spreading its tentacles. Modernization surely favoring our country in terms of economy, better standard of living, digitalization, scientific and technological developments but it continues to pose several new challenges. This changing society is giving rise to new forms of crime like cybercrimes, digital fraud, deep fake etc. This change not only giving rise to crimes but also to civil disputes. Disputes related to Contracts, property, environment, consumer, tort, Family etc. fall within ambit of civil disputes. The resolution of such disputes is necessary for development of a harmonious society. For that reason, methods of dispute resolution are also adapting the changing needs of society.

The answer of question mentioned above lies in this abovementioned change. Judiciary is facing excessive burden. 1,08,38,375 civil cases are pending in Courts in India1. While delivering a lecture, Justice D. Y. Chandrachud said “Courts in India are extremely 1 Soibam Rocky Singh, “Why are civil disputes being criminalised? | Explained”, The Hindu (April 20, 2025), available at https://www. thehindu. com/news/national/why-are-civil-disputes-being-criminalised explained/article69469147. ece

overburdened and desperately congested”2. He referred ADR methods like mediation as an effective instrument to tackle high pendency of cases. Litigation still is the first things comes to the mind of people when they want justice. But with court’s supportive approach and with the introduction of new legislation, it is being expected that mediation will be able to justify its potential. IS MEDIATION A NEW KID ON THE BLOCK?

Mediation sought a lot of attention in India after signing of Singapore Convention in August

2019. But definitely it was not the beginning of mediation. Even before the conventions and

the laws we have now, it was a familiar concept. Before formalization and codification of laws on mediation, it was ingrained in social fabric of Indian society and its culture. Elders of family, village and community were used to solve the disputes. In classical ancient India concept of ‘Shantidoot’ was in existence. Indian mythological history provides examples of how emissaries of peace were sent before the opting war, with a hope of avoiding war and attaining a peaceful outcome. “Lord Krishna” considered as the ideal mediator3’. This reminds me of the third chapter of the book ‘Rashmirathi’ written by Ramdhari Singh Dinkar ji which explains how Shri Krishna came to Hastinapur with an offer which could have prevented the war of Mahabharat if had been accepted. In a book titled ‘Krishna and Mediation written by Prof (Dr. ) V. K.

Ahuja beautifully explains the efforts Krishna put to mediate between Kauravas and

Pandavas before war. Likewise in Ramayan, Angad went to court of Ravana to offer a peaceful truce to avoid war. Although, both attempts were unsuccessful still present a good example to idea behind mediation- put every effort to resolve the disputes till the last minute. § Law in Transition: Shaping legal framework through Reports and Reform It was in mid-1990s when the idea of mediation was planted through modern mediation movement in Singapore. 4 In 1987, Legal Services Authority Act was passed in India which 2By Hon’ble Justice D. Y. Chandrachud, former Chief Justice of India, while delivering a lecture in Justice Y. V. Chandrachud Memorial Lecture conducted on 19-08. 2022 in inauguration of the Indian Law Society's ILS Centre for Arbitration and Mediation (ILSCA), Pune. Summary available at https://lawtrend.

in/courts-areextremely-burdened-and-desperately-congested-justice-chandrachud/ 3 V. K. Ahuja, Krishna and Mediation, 120 (National Law University and Judicial Academy, Assam, Amingaon Guwahati 1st edn. 2023) 4 Sadhana Ramachandran and Sudhanshu Batra(eds), Mediation and its promises, 15 (Samadhan, Delhi High Court Mediation and Conciliation Centre, New Delhi 2023) file:///C:/Users/apoorva/Documents/books/mediation-full-bookpdf-46f85200efe676508ac04a3c80dafb73. pdf

came into effect in 1995, promotes ADR mechanism for resolution of matters out of the court.5 In 1996, Arbitration and Conciliation Act was passed repealing Arbitration Act 1940 with an aim to provide faster and cheaper arbitration and conciliation. This was a significant step in development of ADR mechanism. The Law Commission of India and some committees had made some studies on pending docket and also made various recommendations. The Code of Civil Procedure (Amendment) Bill,

1997 which was introduced on 14th August 1997 in Rajya Sabha was impacted by Law

Commission’s 129th Report6, the Committee on Subordinate Legislations (11th Lok Sabha) Report and Malimath Committee Report on “Alternative Modes and Forums for Dispute Resolution” along with their recommendations7. In 1999, an amendment made to Civil Procedure Code, 19088 inserted section 89 with an aim to settle disputes amicably with intervention of court. Section enables the court to explore feasibility of settlement between the parties by proposing and revising terms and if deems fit, referring the matter to mediation to encourage resolution through prescribed procedure.

§ Judicial Backing: A pillar of Dispute Resolution Supreme Court in its judgement Salem Advocate Bar Association v Union of India (2003)9 upheld the amendment of 1999 and Salem Advocate Bar Association v Union of India (2005)10 further clarified how Section 89 should be applied and on endorsing mediation as a legitimate and effective tool. Additionally, the Supreme Court's Mediation and Conciliation Project Committee (MCPC) facilitated the creation of court-annexed mediation centres11. In the same year (2005), India’s first Court annexed Mediation Centre was established in Madras High Court. Further, Supreme Court on India in Afcons Infrastructure v. Cherian Varkey Construction12 passed comprehensive guideline for implementation of section 89 of CPC.

5 Madhumitha K “Impact of Mediation in India and Its Effectiveness in Resolving Disputes”, 3 CMR University Journal for Dispute Settlement and Arbitration, 130 (2024) 6 Law Commission of India “129th Report on Urban Litigation Mediation as Alternative to Adjudication” (August, 1988).

7 Supra Note 4 at150-151

8 Civil Procedure Code,1908 (Act 5 of 1908), S.89

9 (2003) 1 SCC 49.

10 (2005) 6 SCC 344.

11 Taushif Ahmad and Dr. Rajeev Kumar Singh, “Mediation in India: A Journey from Tradition to

Transformation” 4 International Journal of Human Rights Law Review 644 (2025).

12 (2010) 8 SCC 24

Another major step was taken in year 2018 when mediation was added through amendment in The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act13” in 2015, as a method of commercial dispute settlement and Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 were adopted to make 2018 amendment effective. The honourable Supreme Court in M/s Patil Automation Private Limited and Ors. v. Rakheja Engineers Private Ltd 202214. addressed the issue of mandatory pre-institutional mediation mandated by the Commercial Courts Act of 2015 and determined that this provision is not merely procedural but rather a mandatory requirement that must be carefully adhered to, and failure to comply with this requirement will result in the dismissal of a commercial suit.

Parallel to this development, mediation/conciliation was adopted in some legislations including Industrial Dispute Act, 1947, Special Marriage Act, 1954, Hindu Marriage Act, 1955, Family Courts Act, 1984, Companies Act, 2013, Real Estate Regulation and Development Act 2016, and Consumer Protection Act, 2019.

MEDIATION ACT 2023: NEED AND FEATURES

Pressure on court system leading to delayed delivery of justice, expansion of commerce pushes the need for alternative solutions. Mediation as a part of Alternative Dispute Resolution Mechanism has transformative power to change the scenario. Mediation “includes a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties to the dispute;”15 In other words Mediation is a way of resolving disputes with the help of a neutral third party known as mediator.

Innate qualities of mediation like speed, the flexibility and affordability, effectiveness have further contributed to its popularity locally and globally. Like many other countries, increased use of mediation has naturally exposed some of its shortcomings in India as well. Issue of 13 The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. (Act 4 of 2016)

142022 LiveLaw (SC) 678

15 Mediation Act 2023 (Act No. 32 of 2023), S. 2(h)

enforcement of settlement agreements, inadequacy of uniform protocol for mediator, legal vacuum in dealing with cross-border mediation, challenge of maintaining professional and ethical standard of mediation. Pressure from international community to formulate a domestic law was evident, especially after Singapore convention took effect. These developments prompted proposals, including those from Supreme Court for enactment of a comprehensive legislative framework to promote and regulate mediation. Such as M. R. Krishna Murthi v. The New India Assurance Co. Ltd16 acknowledged the increasing importance of mediation and also emphasized the essential role of the legislature in acknowledging its value. While also urging the Government to develop the Indian Mediation Act.

A report prepared by High Level Committee to Review ‘the institutionalization of Arbitration mechanism in India’ also said, courts play a crucial role in referring disputes to mediation. It is the judge who has the primary responsibility to identify the case’s capability of being mediated. And if it is; then to refer it to mediation with parties’ consent17. It light of this development, a Mediation Bill was introduced in Rajya Sabha in December

2021 and after parliamentary standing committee report amended bill passed in both houses of

parliament in August 2023 with president assent. § Features18

1. Act consolidate the law on Mediation. It overrides, amends, subsume other laws;

mediation or to withdraw from it. They can decide over the place, language, mode and procedure of mediation. In other words, Parties have a right of self-determination.

3. Mediator as Facilitator – The Act describes the role of mediator. It is necessary for the

mediator to access the parties in neutral and impartial manner guided by the principles of objectivity and fairness. Mediator’s role is to guide parties to reach out a voluntary agreement or a self-created solution.

4. Identify disputes unsuitable for mediation- There are some matters that are not capable

of being resolved through mediation due to public policy reasons. Mediation Act provides a list of matters not suitable for mediation unlike Arbitration and Conciliation Act 1996. Disputes involving prosecution of criminal offences, dispute related to claims against certain persons like minor, person with disability, disciplinary proceeding against professionals etc. are excluded as not fit for mediation.

5. Smooth and timely conduct of mediation- Definitive beginning and end to mediation is

provided. A time has been fixed for mediation proceedings; 120 days from the first appearance of party before mediator. Act clarify the role of mediator, its appointment and procedure of mediation. It helps to conduct the process smooth.

6. Enforcement of settlement agreements- The new act defined the mediated settlement

agreement. Registration of settlement agreement is also provided but optional. Once the settlement agreement is signed, it becomes binding on parties just like a judgement and decree19. Although, challenge can be made on proper grounds like fraud, corruption impersonation, subject-matter not fit for mediation20. Agreements to mediate are defined and recognized in act but there is no provision for stay of proceeding if filed in breach of settlement agreement. This loophole makes the mediation law toothless.

7. Mediation Council of India -Act establishes Mediation council of India which will

8. The act leaves out the Singapore convention on Mediation- Singapore Convention on

Mediation21 came into force on 12 September 2020. As of May 2025, it has 57 countries as signatories. It offers a uniform framework for enforcement of international mediated settlement agreement. A major criticism that has happened in Mediation Law is -India has not ratified the Singapore Convention on Mediation and enforcement of international settlement agreements are not accepted by India for the time being. Although, India is a signatory to the Singapore convention. Legislature has valid reasons and concerns behind it22.

9. Pre-litigation Mediation23 -Act create confusion by retaining the idea of pre-litigation.

The Idea of compulsory pre-litigation mediation as proposed in the original bill is withdrawn. The Act provide pre-litigation mediation as an option. Elements of Compulsion opposes the very consensual essence of mediation. It is a voluntary option for party. Making it compulsory is harming to the very basic features of voluntariness in law.

10. Community Mediation24- Act has introduced a chapter on community mediation.

Disputes that may disrupt the peace and harmony of community can be solved through community mediation. There will be a panel of three mediators to facilitate community mediation, with individuals chosen based on integrity, reputation within community and relevant experience. Inclusion of diverse members, particularly women is also emphasized. WHY TO OPT MEDIATION OVER LITIGATION?

Litigation is a primary way to solve disputes in India but is it the only way of getting justice or people are not realizing the immense potential of this new tool to resolve conflicts. Generally, Conflict arises when one party asserts a thing and another denies it. When disagreements escalate, litigation initiated. The system we follow to dilute the disagreements is through litigation. In India, Judicial system is of adversarial nature in which parties are represented

21 United Nations Convention on International Settlement Agreements Resulting from Mediation 2018

22 Anil Xavier, President of Indian Institute of Arbitration & Mediation said during a web discussion on “Mediation, the way!! An analysis of the Mediation Act 2023 conducted by International Mediation Organisation on 05.10.2024 available at: https://www.youtube.com/watch?v=QUExXhtygRQ

23 The Mediation Act 2023 (Act No. 32 of 2023) S. 5

24 The Mediation Act 2023 (Act No. 32 of 2023) S. 43

through advocates representing prosecution and defense in front of an impartial judge or bench of judges. System ensures fairness and justice throughout legal proceedings. Courts are discussing every kind of dispute such a civil, criminal and constitutional. This gives rise to a question that when we had a long running institution of court working on adversarial system then what was the need for a non-adversarial system which we known as Mediation. Answer lies in advantages mediation has over litigation. Neither it is a competitor to court nor it takes away the jurisdiction of the court. Rather, Mediation has become a beacon of care for those seeking justice without burden of prolonged litigation. Here are some highlights of the mediation process- § Swift Resolution Although litigation has traditionally served as a crucial mechanism for serving justice.

But the system is marked by certain deficiencies like taking too much time and cost. As per National Judaical Data Grid, “India has over 50 million pending cases”-a backlog that has doubled in past two decades. If the current pace continues- it would take over 300 years to resolve India’s docket25. If courts confine its effort to solve only registered cases and not allow even a single new case, it will take years to resolve them. As per data of NCRB26 77 percent of India’s prisoners are undertrial27. This reminds me of a famous dialogue ‘Tarikh pe Tarikh’ a scene of court room drama depicted in movie Damini. Situation has arisen that People some time use fake litigation to torture others or to take revenge. Extremely time-intensive proceeding is one of the reasons why we thought of having an alternative dispute resolution mechanism like mediation.

§ Win-Win situation Litigation is an adversarial process where there are two adversaries fighting with each other and at the end of the process one party is winning and another party is losing. Mediation is a non-adversarial process where parties are sitting with each other, talking it out, negotiating 25A Lifelong Nightmare’: Seeking Justice in India’s Overwhelmed Courts https://www. nytimes. com/2024/01/13/world/asia/india-judicial-backlog. html (last visited on May 6, 2025). 26Prison statics in India 2022, available at: https://www. ncrb. gov. in/uploads/nationalcrimerecordsbureau/custom/psiyearwise2022/1701613297PSI2022aso n01122023. pdf (last visited on May 4, 2025).

2777 percent of India’s prisoners are undertrials: NCRB, available at:

https://www.moneycontrol.com/news/india/77-percent-of-indias-prisoners-are-undertrials-ncrb-9142041.html last visited on May 6, 2025)

with each other so that they can have a mutually agreed outcome. More and more Corporates and parties are looking for settlement rather than other prolonged processes28. Samadhan- Delhi High Court Mediation Centre which was set up in 2006 has solved 8617 out of 33406 which consist nearly 25% of all cases within a period from March 2006 till February

2023.29 Likewise Tamil Nadu Mediation and Conciliation Centres shares data that it has settled

19,05% cases referred during the span from April 2005 to February 2025. 30 § More Satisfactory outcomes Mediation is always forward looking. What has happened has happened but it suggests new ways to continue, to heal, and new opportunities to look for. Through Mediation, both the parties get a desired result based on mutual agreement. In litigation, relations are at stake. Decisions can yield outcomes with far reaching consequences for personal equations of individual. When a partner in marriage files a case against the other, when a brother files a case against his brother or sister regarding any disputed property and when a party to a contract takes legal action against other party, their relations remain intact31? Certainly not. In Mediation, relationships are given immense importance and dealt with sensitivity.

§ Cost effective and Easy process Mediation set up is relaxed and its process is easy as compared to litigation. A conducive environment for communication is created where parties show their real self. Absence of a formal setting makes it easy for party to put their part clearly and comfortably. Mediation is said to be an effective process. Effectiveness of mediation can be analyzed in terms of cost, speed and satisfaction. 32

28 Dr. Mohd. Umar in day 2 of CPB on ADR & Legal Aid by ProBono India available at:

https://www.youtube.com/watch?v=5sV25wAehgs

29 Samadhan, Delhi High Court Mediation and Conciliation Centre, Home, available at:

https://dhcmediation.nic.in/ 30 Tamil Nadu Mediation and Conciliation Centre, High Court of Madras, Statics available at: TNMCC | High Court of Madras

31 Supra Note at 29.

32Lourdes Munduatea, Francisco J. Medinaa, and Martin C. Euwemab, “Mediation: Understanding a Constructive Conflict Management Tool in the Workplace”, Journal of Work and Organizational Psychology (2022)

§ Confidentiality is the key Mediation process is one of the most confidential processes. It is not wrong to say that confidentiality is one of the basic pillars of mediation. It is a closed and comfortable setting where parties can communicate and explain their issues freely without any fear. And by themselves can come to a conclusion with help of mediator. These are some key qualities that makes mediation appreciable. Although, Mediation limits itself to civil cases only. Criminal matters, cases where court authorization, court protection is required etc. mediation cannot be conducted. Generally, it is considered that mediation is preferable for family disputes only but it can be conducted in other civil disputes like consumer disputes, labor conflicts, corporate tussles etc. Supreme Court in Afcons Infrastructure v.

Cherian Varkey Construction33 observed all disputes of civil nature be it related to trade, commerce and contracts are suitable for dispute resolution through mediation; not necessarily confined to inter-personal or family disputes.

REIMAGINING DISPUTE RESOLUTION: E-MEDIATION

Covid 19 pandemic has profound and damaging effects in everyone’s life. It drastically altered normal course of living and gave birth to a new normal. But it is true that innovations arise in times of scarcity. Online dispute resolution is one such development. With growth of technology and digitalization, ODR developed as a possible dispute resolution mechanism to provide speedy access to justice including e-Mediation. In India, fortunately, the current environment and preparedness for ODR is quite encouraging. For instance, the judiciary has shown firm support for ODR both in terms of judges vocally recognizing its potential and in terms of the court rulings that have set the foundation for ODR to be integrated in future34. Justice D. Y. Chandrachud said that he strongly believes in the role ODR can play in today’s technology integrated world.

“This is not just because of the process being conducted virtually, but also because of its firm willingness to adopt all forms of digital solutions available. In my opinion, one of the most important learnings from the past one year of virtual hearings, has been that the process can often be far more efficient because of very

33 (2010) 8 SCC 24

34 NITI Aayog, Designing the future of dispute resolution: The ODR policy plan for India 2021. available at: (https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf

simple changes—the use of digital files by all parties, the ability to make digital notes, and having all documents in one place. It will make all parties consider it more amicable and solution-oriented. This will ultimately lead to more efficient dispute resolution”. 35 Udaan, India’s largest B2B platform for businesses and shopowners, resolved over 1800 disputes in one month using an ODR service provider. 36 The Mediation Act, 2023, reinforced ODR by recognizing e-mediation and ensuring enforceable settlement agreements. 37 NITI Ayog’s The ODR Policy Plan for India 2021 highlights some challenges to ODR such as lack of digital infrastructure, lack of awareness, lack of trust in ODR process and digital divide etc. If challenges are addressed, ODR has potential to localize and streamline conflict resolution in India, addressing diverse community needs.

With rising demand for efficient dispute resolution and rapid tech advancements, India is poised to lead in ODR innovation.

CONCLUSION

Mediation was introduced to reduce the burden but over a period of time it is realized that Mediation is not only an alternative dispute resolution mechanism; indeed, it is an adequate dispute resolution mechanism. The New law provides a lot of confidence and protection to the mediating parties like confidentiality provision; all opinion, suggestion, promises and communication should be kept confidential except in restricted circumstances. Mediator is not allowed to disclose any communication made during mediation. Smooth process, greater satisfaction, timely and cost-effective proceedings give parties the confidence to trust and adopt the mediation. Act also provides greater flexibility to mediator as they are not bound by strict procedural code.

There are some challenges while implementing mediation and online mediation like digital divide, lack of infrastructure, lack of trained mediator specially in case of e-mediation, lack of trust in people, toothlessness of agreement to mediate etc. There is a long way to go. As of now, Mediation Council of India has not been formally set up. It has to be established, mediation institutes have to gradually evolve, larger pool of trained mediator 35 Pib Online Dispute Resolution’s Role Critical during Covid-19 Pandemic: Justice DY Chandrachud, NITI Aayog, Agami & Omidyar Release ODR Handbook Posted On: 10 APR 2021 7:52PM by PIB Delhi

36 id

37 Taushif Ahmad and Dr. Rajeev Kumar Singh, Mediation in India: A Journey from Tradition to

Transformation, International Journal of Human Rights Law Review, Volume 4 | Issue 2

must emerge. But this is certainly a good start. And if we overcome these challenges, it could become one of the most impactful innovations in modern dispute resolution.