Beyond Legislation: Mediation As A Justice Paradigm, Not A Procedural Fix

Gokul Narayan, Namah Bose

This article argues that mediation in India must evolve from a court-annexed procedural tool into an independent justice paradigm. Despite legislative support, structural gaps in implementation, institutional design, and training persist. Drawing on comparative practices and domestic data, it contends that embedding mediation contractually and strengthening legal education are essential. The paper advances a normative shift from efficiency-driven reform to a participant-centric, structurally reimagined dispute resolution system.

Introduction

Mediation in India continues to be imagined narrowly. It is seen largely as a response to the judiciary’s pendency crisis or as a convenient procedural fix to speed up litigation. But this line of thinking limits what mediation is really capable of. If we want dispute resolution to be truly transformative, we need to move beyond this short-sighted understanding. Mediation must be viewed not merely as an alternative to litigation, but as an entirely different way of delivering justice. India’s population, diversity, and complexity are not barriers. They are exactly why such a model is necessary. Access to justice cannot be reduced to procedural efficiency, such as timelines or disposal rates. It must be conceived substantively, incorporating agency, participation, dignity, and affordability, and treating individuals as active participants rather than passive subjects of adjudication. Realising mediation’s potential requires re-examining the assumptions underlying how disputes are taught, conceived, and resolved, and a return to fundamental principles regarding the purpose of formalised dispute resolution. This is not a matter of incremental reform, but of structural rethinking. In this sipirit, this article advances a normative challenge: to foreground mediation through earlier engagement and to resist its treatment as a by-product of the courtroom being merely ancillary to adjudication.

Tradition vs Transition

India has never lacked indigenous models for consensual dispute resolution. Panchayats and informal community systems operated as organic platforms for settlement, long before the term “ADR” entered our legal vocabulary. President Droupadi Murmu has rightly reminded us of Gandhi’s consistent emphasis on reconciliation over litigation. However, in the present system, mediation is being introduced and implemented largely through court-annexed structures. While these centers offer legitimacy and access, they also carry with them the institutional weight of the courts. Over time, this has caused mediation to be seen not as an independent system of justice, but as an extension of the judicial process. This institutional framing risks undermining the very qualities that make mediation effective: adaptability, autonomy, and party-driven resolution.

For the promotion of a party-driven resolution, party-driven acceptance is a must for mediation to become a popular choice. Voluntary mediations can enhance the growth of the sector, rather than court-annexed mediation. If mediation is to evolve into a full-fledged system in its own right, it must be supported not just by legislation and lofty words but by parallel structures that stand outside the court, accessible, trusted, and functionally independent.

Legal Push, Practical Gaps

The Mediation Act, 2023 ('The Act') along with amendments to the Commercial Courts Act, 2015, signal a strong intent from the legislature. However, the infrastructure, personnel, and public trust needed to match that ambition are far from ready. Take the example of Keralam, one of the most active states in mediation. In 2024, over 41740  cases were referred to mediation. Just under 17175 of them resulted in a settlement. A 41.15%  settlement rate might appear reasonable, but it also reveals a deeper concern - even when referrals happen, a significant majority of parties are either not reaching a resolution or not engaging meaningfully. The reasons may include lack of preparation, poor orientation, weak institutional support, or a general lack of faith in the process itself. Pondering on the numbers alone is not the point; the failure to decipher why or address what’s behind it is.

Delhi and Maharashtra, while stronger on infrastructure, show the same inconsistency. The country does not have a unified vision on how mediation centres should function, who can become a mediator, how mediators are to be trained and compensated, or what institutional models work. If we speak of national transformation, we must define the transformation we seek, not just courts referring more matters, but a shift in mindset, in training, in incentives, and in institutional design.

The Act was enacted with the expectation of encouraging NGOs, professional bodies, and law firms to establish institutional centres. Yet, despite budgetary allocations and two years since its passage, the Act remains largely unimplemented, with the government’s reasons for delay unclear. Meanwhile, initiatives such as the Mediation for the Nation 90-day drive, launched by the Supreme Court’s MCPC and NALSA in July 2025, have concluded without clear evidence of impact. Notably, institutions consulted during the Act’s drafting did not participate in the Mediation for the Nation 90-day drive, as their recognition under the Mediation Council of India is still pending.

Training: The Missing Link

Mediation cannot succeed without dedicated training, both for mediators and for legal professionals engaging with the process. This distinction is crucial:

●    A mediator is a neutral third party. With the right training, anyone can be a qualified mediator. The skill lies in neutrality, communication, facilitation, and control of the process.

●      A mediation advocate, however, must be a lawyer. This is a specialist role. It requires not only understanding and clarifying legal rights, but also having the ability to guide clients through a collaborative negotiation, one that respects legal positioning without falling into combative lawyering.

Law schools have a major role to play here. Most five-year law programmes offer around 3,600 hours of classroom instruction. Yet collaborative dispute resolution rarely gets more than 20 hours of attention. This creates an imbalance; students learn how to argue to defend, but not how to collaborate to resolve. They are trained to win, not to de-escalate. Therefore, there is a clear imbalance in how mediation is taught in law schools today. This can be addressed through greater emphasis on practical training and simulations. Training in formative law school years can build collaborative thinking through workshops and dialogue-based learning. As long as mediation is treated as peripheral in the education system, it will remain peripheral in practice.

Comparative Analysis with Different Approaches to Promote Mediation

In the United States, the benefits of mediation have been felt by lawyers. Around the mid-1980s, lawyers and State Bar Associations in the US had professionalised mediation by setting training standards, providing lawyer education, and prescribing ethical norms for mediators and advocates. Lawyers integrated mediation into their practice without losing business, instead becoming mediators and key supporters of the process. Over time, mediation emerged as the primary ADR model in US courts, with federal agencies like the Postal Service, Air Force, Information Agency, and Department of Veterans Affairs adopting it for contract, workplace, and labor disputes. It evolved as an independent mechanism through improved training and by promoting mediation as a facilitator of quicker dispute resolution, rather than a hindrance.

Since 2021, Middle Eastern countries have begun to codify mediation laws that incorporate key principles such as confidentiality, voluntariness, and judicial support. Qatar has ratified the Singapore Convention on Mediation and has incorporated it within the mediation framework. Further, the UAE has also included a mechanism to promote virtual mediation, reducing the requirement for in-person meetings. Institutional support from Dubai International Arbitration Centre (DIAC) and the Abu Dhabi Global Market (ADGM) has allowed mediation to become a viable, cost-effective, and legitimate option for dispute resolution. Countries have adopted different methods to ensure public trust. All such approaches require institutional support and the active participation of lawyers in designing, implementing, and upholding these mechanisms.

Conclusion 

For mediation to evolve as a justice paradigm rather than remain attached to court-annexed structures, it must gain traction as a voluntary choice between parties. Just as arbitration has secured its place in commercial contracts through widespread acceptance and institutional promotion, mediation too needs to be embedded contractually as a first resort, giving it legitimacy beyond the courtroom. In addition, the imbalance in education and training must be corrected. Law schools and professional institutions must prioritise practical mediation advocacy, client support, and collaborative negotiation skills, not as peripheral modules but as core courses. Section 30 of the Arbitration and Conciliation Act, 1996, which governs the alternate dispute resolution clauses relating to arbitration in India, has provided impetus to the Arbitral Tribunal, with the consent of the parties, for the use of mediation or conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. It highlights that the legislature does not envision mediation as only a court-annexed procedure. As seen in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., the courts have already done the job in promoting court-annexed mediation by stating that reference to the ADR Process is a must. It has further been noted by distinguished mediators that when mediation moves away from court-annexed mediation to private mediation, litigants benefit from a wider choice of mediators and mediation services. Only by strengthening both voluntary adoption and structured training can mediation transition from being a procedural fix to becoming an independent and trusted system of justice.