‘मध्यस्थता पहले’ से ‘मध्यस्थता बाद में’: 2023 के मध्यस्थता अधिनियम के बाद संस्थागत अभ्यास पर विशेषज्ञों के विचार

The discussion on Day 1 of the India Digital ADR Summit 2026 continued with a focus on “Mediation after the Mediation Act, 2023: From Statutory Framework to Institutional Practice.” The experts examined the practical transition from the statutory recognition of mediation to its implementation through mediation centres and service providers, with panellists addressing the evolving role of mediators and lawyers, accreditation and quality standards, community mediation, online mediation, pre-mediation processes and the institutionalisation of mediation in India.

The panel was moderated by Hriday Buch, Advocate, High Court of Gujarat and attended by:

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J.P. Sengh, Senior Advocate and Senior Trainer, Mediation and Conciliation Project Committee (MCPC), Supreme Court of India;

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Amar Bhatt, Senior Advocate and Senior Trainer, MCPC, Supreme Court of India;

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Veena Ralli, Advocate, Accredited Mediator and Senior Trainer, MCPC, Supreme Court of India;

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Jonathan Rodrigues, International Mediator and Managing Partner and Co-Founder, PACT;

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Manan Bhatt, Advocate and Accredited Mediator.

[In picture left to right: Jonathan Rodrigues, Veena Ralli, J.P. Sengh, Amar Bhatt, Manan Bhatt and Hriday Buch]

J.P. Sengh: Mediation Act addresses gaps in training, recognition and enforcement

Opening the substantive discussion, J.P. Sengh traced the development of mediation in India and explained the need for a statutory framework. He noted that India had been among the early signatories to the Singapore Convention on Mediation1, but domestic legislation was necessary to support ratification. He also referred to the amendment of Section 89, Civil Procedure Code in 2002 and the establishment of mediation centres from 2006 onwards, observing that these developments helped mediation centres emerge across the country despite the limitations of the existing framework.

J.P. Sengh questioned the extent to which legislation should make mediation rigid. He observed that mediation in India had developed through a distinctive community and court-based culture and contrasted this with settings where mediation was conceived primarily as a transformative process rather than simply a means of settling court disputes. At the same time, he said that courts’ institutional involvement helped spread awareness that disputes could be mediated without necessarily requiring judicial intervention.

He identified several practical reasons for enacting the Mediation Act. According to him, there had been a rapid growth in the number of mediators without a fixed curriculum or uniform standards. The system also lacked a clear statutory basis for recognising mediators and faced uncertainty regarding enforcement of mediated settlements. The Act, he said, was needed to create standards for mediator training and mediation service providers, while providing a clearer institutional framework for mediation.

He then outlined the potential implications for different stakeholders. For courts, a stronger mediation system could allow judicial resources to be directed towards matters requiring adjudication and legal determination. For mediators, statutory recognition would provide a formal professional identity. For lawyers, mediation would become an additional area of practice, while also strengthening skills such as negotiation and communication. For the corporate sector, he identified quicker and less expensive resolution, preservation of commercial relationships and confidentiality as important advantages.

J.P. Sengh also emphasised the access-to-justice dimension of private mediation. Many disputes, he said, never reach court because individuals lack the money, time or other resources required for prolonged litigation. A statutory framework that also supports private mediation could therefore make dispute resolution available to people who would otherwise be unable to pursue a formal claim.

Building mediation in Delhi: from resistance to institutional practice

J.P. Sengh subsequently reflected on the establishment of mediation in Delhi, describing the early resistance that accompanied the introduction of mediation centres. When the Delhi initiative began in 2006, the Bar was initially reluctant to embrace the process, with concerns about the implications for the traditional role of lawyers. He recalled that building acceptance required sustained engagement and training before the concept gained wider support.

Veena Ralli later provided an account of the growth of the Samadhan, the Delhi High Court Mediation and Conciliation Centre, noting that the centre began with 45 mediators and had since expanded significantly. She said that approximately 1,500 applications had recently been received for mediator training, from which 100 candidates had been selected for training, reflecting increasing interest in mediation as a professional field.

According to Veena Ralli, the Delhi centre had developed a strong working relationship between the Bench and the Bar, with a substantial number of court referrals and mediators returning settlements to the courts. She stated that the centre’s settlement rate was above 50%. The centre had also developed different forms of referral-based mediation, including pre-mediation mediation and mechanisms involving arbitration and mediation.

She explained that, in certain applications under Section 11 of the Arbitration and Conciliation Act, mediation was being explored before the matter proceeded further. Depending on the urgency of the matter, parties could be given 30, 60 or 90 days for mediation. She also noted that arbitrators were referring matters for mediation, demonstrating increasing interaction between the two dispute resolution mechanisms.

Veena Ralli further described the development of mediation under the Commercial Courts framework. She recalled that the requirement for mediation raised practical questions about the location and infrastructure of the relevant authority. Samadhan offered its infrastructure and mediator panel for this purpose, allowing applications filed before the authority to be referred to the centre once the parties consented. Settlements were subsequently returned to the authority.

The centre, she said, had developed panels comprising senior advocates with expertise across different areas of practice, while allowing parties to have a choice of mediator. This, in her view, created greater certainty and credibility and demonstrated the value of institutionalising mediation.

What should a mediator do under the Mediation Act, 2023?

The panel then turned to a central question under the statutory framework: whether the definition of a mediator under the Mediation Act, 2023, permits a mediator to go beyond the traditional facilitative role and offer solutions.

Jonathan Rodrigues distinguished between the textbook understanding of mediation and the more nuanced practice of experienced mediators. He identified four fundamental principles that, according to him, remain central to mediation: confidentiality, voluntariness, neutrality and party autonomy. Party autonomy, he explained, means that the parties retain the agency and choice to make their own decisions. On that basis, the mediator ordinarily should not impose or suggest a solution.

He explained the importance of neutrality through an example from a high-value mediation in which the parties had remained entrenched in competing positions. When asked by the parties which side was telling the truth, a senior mediator responded that she believed both sides were telling their own truth. Jonathan Rodrigues said that this was important because once a mediator begins to regard one party as right and the other as wrong, the mediator risks taking a side. The task is instead to move beyond the parties’ respective positions and help them find a resolution.

He nevertheless acknowledged that there can be situations at the very end of a mediation where the parties may ask the mediator to make a proposal. Describing this as a “mediator’s proposal” and “Plan Z”, he explained that such a step could arise after extensive negotiations had reduced a dispute to a narrow gap and neither party was willing to make the final concession. In such circumstances, a mediator’s proposal may help bridge the remaining divide, but Rodrigues stressed that this is an exceptional, end-stage intervention rather than the ordinary role of the mediator.

The discussion thus turned on how the broader statutory definition should influence mediation practice. Hriday Buch suggested that the inclusion of conciliation within the statutory definition calls for a more proactive approach to facilitating settlements. Jonathan Rodrigues agreed that implementation should not mean merely placing parties in a process, but should involve active and effective mediation within the limits of the mediator’s role.

Amar Bhatt: shift from “litigation first” to “mediation first”

Amar Bhatt placed the development of mediation in the wider evolution of the legal profession. Reflecting on his early years in practice, he recalled a time when litigation appeared to be the primary tool available to lawyers for resolving disputes. He argued that this is no longer sufficient and that lawyers increasingly need expertise in mediation, mediation advocacy and arbitration alongside litigation.

He referred to the broad range of legislation through which mediation or conciliation mechanisms have emerged, including the Family Courts Act, Legal Services Authorities Act, Arbitration and Conciliation Act, Section 89 of the Code of Civil Procedure, the Micro, Small and Medium Enterprises framework and the Consumer Protection Act, alongside the Mediation Act. He also referred to Karnataka’s introduction of Section 89A to make pre-mediation mediation compulsory, presenting these developments as part of a wider shift in the legal system.

For Amar Bhatt, the larger objective is to change the mindset from “litigation first” to “mediation first”, or from asking “why mediation?” to asking “why not mediation?”. He linked this transition to the broader need to improve India’s justice system in the face of substantial judicial pendency.

He then addressed the practical difficulty of overcoming parties’ entrenched positions. Drawing on his experience of mediation, he said parties often approach the process with a mindset that makes them reluctant to move towards settlement. Effective training, he observed, equips mediators with techniques to break such impasses and help parties move beyond their initial refusal to compromise.

Community mediation and enforceability under the Mediation Act

The panel next examined the status of community mediation. Manan Bhatt explained that the Mediation Act recognises community mediation and that Sections 43 and 44 deal with the mechanism, which is intended to preserve peace, harmony and tranquillity among members of a community.

He distinguished between the binding force of a community mediation settlement and the manner in which it can be enforced. According to him, a community mediation settlement is not binding or enforceable in the same manner as a judgment or decree of a civil court. At the same time, it remains binding and enforceable as an agreement.

Manan Bhatt suggested that this distinction may be connected to the nature of community mediation. Such disputes are concerned with preserving relationships and the fabric of the community. Treating the settlement as equivalent to a court decree might make participants less willing to speak openly during the mediation. He noted, however, that the Parliamentary Committee had suggested removing the non-enforceability aspect, making the question one that may require further legislative consideration.

Online mediation can provide a more workable setting for difficult disputes

Jonathan Rodrigues then discussed the viability of online mediation, particularly in disputes where the parties have become deeply estranged. He supported wider adoption of online mediation and noted that India now has a number of Online Dispute Resolution providers.

He explained that online mediation can be particularly useful where parties have not met one another for long periods or where direct physical interaction may initially make a joint session difficult. In such cases, mediators can begin proceedings online and, once relations become more constructive, move towards a physical joint session.

He also offered a practical suggestion to students entering professional practice: when reviewing employment contracts, they should check whether the agreement contains a mediation clause and, where appropriate, consider asking employers to include a simple contractual mechanism for resolving disputes through mediation.

Mediator accreditation, training and quality control

The panel then returned to the institutional challenges surrounding the growing number of mediators. J.P. Sengh observed that one reason mandatory pre-mediation had not initially been introduced was the sheer scale of pending litigation and the absence of a sufficiently large pool of trained mediators. He identified training, accreditation, independence and impartiality as central requirements.

He also raised an important question concerning the type of expertise required of mediators: whether a mediator should primarily be a domain expert or a process expert. He suggested that some degree of domain knowledge is important, but the discussion highlighted that professional mediation requires more than subject-matter expertise alone.

Veena Ralli similarly stressed that the expansion of mediation must be accompanied by quality control. She noted that the Act provides for mediation service providers and said that regulation of their quality would be important to the future of the profession. Simply placing every trained mediator into a single pool, she cautioned, could dilute standards. The objective should therefore be “not more mediation” but “better mediation.”

She further explained that the future of mediation should not be understood merely in terms of conducting mediation through video calls. In her view, the emphasis must be on digital mediation, capability, credibility and the creation of a culture in which people increasingly trust and adopt mediation.

Lawyers must change their role in the mediation process

In the concluding substantive discussion, Hriday Buch raised concerns about the role of lawyers in mediation. He observed that parties may be willing to discuss their disputes openly, but lawyers can sometimes prevent that openness by maintaining an adversarial approach. He questioned whether the changing dispute resolution environment requires lawyers to reconsider their traditional role.

Amar Bhatt responded that the role of lawyers in mediation can be understood in different phases. A lawyer can act as a coach, encouraging the client to participate in mediation. Where the client is vulnerable, the lawyer may also act as a “bodyguard”, ensuring that the resulting settlement remains in the client’s best interests. He cautioned, however, against lawyers approaching mediation as though they were “hired guns” whose task was simply to argue against the other side. The professional mindset, he said, needs to change.

He suggested that this change could be supported by introducing mediation advocacy as a subject in legal education, thereby familiarising future lawyers with the skills and professional responsibilities involved in representing clients in mediation.

The discussion ultimately underlined that the Mediation Act, 2023 is only the beginning of a larger transition in India’s dispute resolution framework. The panellists pointed to the need for credible institutions, properly trained and accredited mediators, effective quality control and greater awareness among lawyers, litigants and the wider public. The discussion on community mediation and online mediation further demonstrated that institutional practice will have to accommodate different forms of disputes and different ways of accessing the process.

At the same time, the panellists stressed that greater institutionalisation should not come at the cost of the principles that distinguish mediation from adjudication. Confidentiality, voluntariness, neutrality and party autonomy remain central to the process, even as the statutory framework gives mediation a more defined place within India’s justice system. The discussion also highlighted that the growth of mediation will require a corresponding change in the role of lawyers, from an exclusively adversarial approach towards one that enables clients to recognise settlement as a meaningful form of dispute resolution.

The panel thus moved beyond the question of what the Mediation Act provides to the more practical question of how its promise can be translated into everyday practice. Its emphasis was on building a mediation ecosystem that is institutionally credible, professionally competent, technologically accessible and capable of earning the confidence of those who use it. The concluding sentiment of the discussion was that mediation should move from being an alternative considered after litigation has begun to becoming a more readily accepted first option for resolving disputes.

Read more from India Digital ADR Summit

1. United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) also known as the “Singapore Convention on Mediation”

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