Author:  Sri Tarun Dey

 Judicial Officer,

 Assam Judicial Service.

The Hon’ble Supreme Court of India had recently launched a 90 day long campaign conceptualised by the National Legal Services Authority and the Mediation and Conciliation Project Committee to tackle pending cases from the Taluka Courts to the State High Courts. The campaign had commenced from July 1, 2025 and ended in September 30, 2025. The pan-India mediation campaign intended to take mediation to “every nook and cranny” as an alternative and people-friendly mode of dispute resolution.

In this context, let us understand the concept and significance of mediation in our justice delivery system as an effective alternative dispute resolution. A world renowned mediator, Joseph Grynbaum once said ‘An ounce of mediation is worth a pound of arbitration and a ton of litigation’.

When a dispute arises, there are broadly two ways of addressing, one is adversarial, like litigation in Courts/ tribunals and the other is non adversarial, which is an alternative to litigation, popularly known as Alternative Dispute Resolution.

The concept of Alternative Disputes Resolution is not of recent origin. Though documentation is scant, it is believed that nearly every community, country, and culture has a lengthy history of using various methods of informal dispute resolution. Tribal communities practiced diverse kinds of dispute resolution techniques for centuries in different parts of the world, including India.

The concept of Mediation is ancient and deep rooted in India. From Lord Krishna mediating between Kauravas and Pandavas in the Mahabharata, to family elders resolving domestic issues, to the resolution of disputes at the community level through Panchayats, there exists a strong culture of mediation in India. With the passage of time, certain statutes provided mediation as a mode of settlement of disputes between the parties.

Article 39 of the Constitution of India adjures that the State should secure a legal system that promotes justice, and enact legislations to ensure the opportunity for securing justice is not denied to any citizen. Hence, speedy judgments and easier access to justice is a cherished goal of the Indian Constitution. The number of pending cases especially Civil Courts has made it impractical to fulfill this objective, and therefore, delay in litigation has become a feature of the adversarial system. 

In this background, in 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec 89 in the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July, 2002. This is the first time that any Indian legislation recognized Mediation as a mode of Alternative Dispute Resolution. The idea was to introduce an alternative process where neutral assistance could be provided to help disputants in arriving at their own solution instead of imposition of some solution by Courts. This helps the disputants to achieve most satisfactory results.

In India, with the advent of Mediation and Conciliation Project Committee by the Hon’ble Supreme Court of India, Court annexed mediation centres in district Courts as well as High Courts have been set up, which has marked a significant development in the system of mediation. The most distinguished feature of Court referred Mediation is that it takes place in Court annexed mediation centre in the cases which are pending before the concerned Court. In Court-Annexed Mediation, the mediation services are provided by the court as a part and parcel of the same judicial system as against Court-Referred Mediation, wherein the court merely refers the matter to a mediator. A significant feature of court-annexed mediation is that the judges, lawyers and litigants become participants in mediation, thereby giving them a feeling that negotiated settlement is achieved by all the three actors in the justice delivery system. When a Judge refers a case to the court-annexed mediation service, keeping overall supervision on the process, no one feels that the system abandons the case. The Judge refers the case to a mediator within the system. The same lawyers who appear in a case retain their briefs and continue to represent their clients before the mediators within the same set-up. The litigants are given an opportunity to play their own participatory role in the resolution of disputes. This also creates public acceptance for the process as the same time-tested court system, which has acquired public confidence because of integrity and impartiality, retains its control and provides an additional service.

To count the advantages of mediation over conventional litigation, I find them many, as follows:

1. The mediation process is VOLUNTARY. The parties cannot be forced to involve in the mediation process. And any party can opt out of it at any stage if he feels that it is not helping him.
2. Mediation is PARTICIPATIVE. Parties get an opportunity to present their case in their own words and to directly participate in the negotiation, without assistance of their respective Counsels. Of course the presence of Counsels is advisable to guide the parties in the process.
3. In mediation, the parties have CONTROL over the mediation process in terms of its scope and its outcome. Scope refers that the issues can be limited or expanded during the course of proceeding and its outcome refers to the right to decide whether to settle or not, and the terms of settlement. In mediation, unlike conventional litigations, the parties decide the fate of their cases, not the Judge, nor the mediator.
4. The mediation procedure is SPEEDY. The procedure in mediation does not involve complex procedures unlike adjudication/ trial in Courts. It is simple involving discussions in private sessions and joint sessions and often concludes within a short time. The schedules of sittings remain flexible and can be arranged to suit the convenience of the parties. It makes the process speedier than conventional litigation.
5. The process is conducted in an INFORMAL, CORDIAL and CONDUCIVE environment.
6. Mediation is a FAIR PROCESS. The mediator is impartial, neutral and independent. The mediator ensures that pre-existing unequal relationships, if any, between the parties, do not affect the negotiation. The impartiality and neutrality of mediator ensures trust building of the parties over the mediator.
7. The process is CONFIDENTIAL. The matters of discussion are not recorded in the proceedings, so also the reasons of non settlement. This is to ensure that the parties open up during the sessions.
8. The process facilitates better and effective COMMUNICATION between the parties which is crucial for a creative and meaningful negotiation.
9. Mediation helps to maintain/ improve/ restore relationships between the parties.
10. Mediation always takes into account the LONG TERM AND UNDERLYING INTERESTS OF THE PARTIES at each stage of the dispute resolution process - in examining alternatives, in generating and evaluating options and finally, in settling the dispute with focus on the present and the future and not on the past. This provides an opportunity to the parties to comprehensively resolve all their differences.
11. In mediation the focus is on resolving the dispute in a MUTUALLY BENEFICIAL SETTLEMENT.
12. A mediation settlement often leads to the SETTLING OF RELATED/CONNECTED CASES between the parties.
13. Mediation allows CREATIVITY in dispute resolution. Parties can accept creative and non conventional remedies which satisfy their underlying and long term interests, even beyond their legal entitlements or liabilities.
14. When the parties themselves sign the terms of settlement, satisfying their underlying needs and interests, there will be compliance. It is unlike the decisions of Courts, which need not be executed by filing execution cases.  
15. Mediation PROMOTES FINALITY. The disputes are put to rest fully and finally, as there is no scope for any appeal or revision and further litigation.
16. In conventional dispute resolution system, one party wins and the other party loses. Such win and lose feeling in parties worsens their relationship, giving rise to appeals/ revisions in Higher Courts. But, in mediation, both the party decides for themselves and as such both parties win.
17. REFUND OF COURT FEES is permitted as per rules in the case of settlement in court referred mediation.

The Indian Legal Framework already encourages the Courts to refer the disputing parties to mediation, if there is an element of settlement which the parties may accept. The enactment of Mediation Act, 2023 has taken this encouragement a step forward. The Act has mainly focused on Pre litigation mediation and recognized it in civil matters for the first time. Pre litigation mediation was earlier validated only in case of Commercial cases. Now after the Act, it will cover all civil disputes except which are specifically mentioned in the Act as not fit for mediation. Like arbitration clause, the parties to an agreement may also add mediation clause in their agreement. Even, irrespective of prior mediation clause, the parties may approach for mediation before approaching to any Court. To facilitate this process, the Act provides for mediation service providers to maintain a panel of mediators.

The Act mandates establishment of Mediation Council of India by the Central Government to register the mediators and recognize mediation service providers and mediation institutes.

Another interesting feature of the Act is introduction of the concept of ‘online mediation’ and ‘community mediation’. As the name suggests, the Act has opened the scope of mediation through virtual mode by the use of electronic devices, where attendance of either party in mediation centers is not possible. While the community mediation is such a concept where any dispute likely to affect peace, harmony and tranquility amongst the residents or families of any area or locality may be settled through community mediation. The Act has mandated the mediation service providers to maintain a special panel of three community mediators to conduct community mediation and all three mediators at a time will conduct a mediation. However any settlement agreement arrived in the community mediation shall be for the purpose of maintaining the peace, harmony and tranquility amongst the residents or families of any area or locality but shall not be enforceable as a Judgment or decree of a civil Court.

The Act has a provision of registration of Pre litigation Mediated Settlement Agreement with a registering Authority constituted under the Act. Another significant provision of the Act is that a mediated settlement agreement shall be enforced with the provisions of the Code of Civil Procedure, in the same manner as if it were a Judgment or decree passed by a Court, and may, accordingly be relied on by any of the parties or persons claiming through them, by way of defence in a legal proceeding. So, the mediated settlement agreement of pre litigation matter gets its finality at par with a decree of a Civil Court. However, this agreement can be challenged in Court, but on very limited grounds. So, the practice of pre litigation mediation in civil matters would reduce the burden on Courts to a great extent.

We have seen recently that the growing number of cases in Indian Courts has become a great matter of concern. The Judge-population ratio in India is approximately 21 Judges per million populations. With growth of trade and commerce, the number of suits involving commercial disputes has increased in recent years. Keeping in view the low Judge-population ratio and the pendency position of civil and commercial suits, mediation as an Alternative Dispute Resolution can prove to be an effective alternative to the conventional dispute resolution. So, the need of the hour is effective utilization of the existing mediation mechanism. All the stakeholders of the Justice delivery system are required to sensitize themselves about their roles and encourage the litigants to resolve their disputes through mediation. Effective utilization of existing mediation mechanism will enhance the efficiency of the system, and thereby gain trust of the disputants and in this way, the disputants will choose mediation over the conventional litigation for resolving their disputes. Very soon, the Courts will no longer be the default venue, rather, it will be considered as a last resort for the disputants for resolution of their disputes and thus, the pendency of the Courts can be reduced to a great extent.