“I think the time is ripe to devise a comprehensive legislation which contains compulsory pre-litigation mediation and a remedy for the biggest drawback in a mediation agreement, that is to say the unenforceability of an agreement arrived at a mediation, would ensure efficiency and also reduce the time pendency for parties as well as the courts,” said the former Chief Justice of India S.A. Bobde, back in February 2020. There is little to no evidence to suggest that we have moved closer to realise the goal set out by Justice Bobde; however, if and when it does actualise, is the legal community ready to embrace such a change?
Research suggests that the most amicable way of settling disputes is through the process of mediation. Mediation is facilitated negotiation. It is a voluntary, self-determinative, confidential, cost and time effective dispute resolution mechanism. A skilled neutral mediator promotes the negotiation proceedings through specialised communication and negotiation techniques with an aim to steer the conflict towards collaboration, and arrive at a tailor made mutually beneficial solution.
In 2018, the former Supreme Court Judge Markandey Katju stated, “33 million cases are pending in the Indian courts and it would take about 360 years to clear the backlog”. Today, we stand at a whopping more than 44 million cases. Such alarming figures indicate the need of the hour to resolve disputes through alternative dispute resolution mechanisms!
This article aims to highlight the dire necessity of mandating pre-litigation mediation which, in our opinion, would enhance the efficiency of the judicial system and relieve the overburdened courts.
Disambiguating: Mandatory Mediation. Does mandatory contradict voluntary?
Mandatory pre-litigation mediation is often misconceived as being inherently against the fundamental principle of ‘voluntariness’. This presents an oxymoron as mediation by its very nature is defined by consent. Few lawyers condone this method of referring cases to mediation by courts since it may infringe the disputants’ freedom to choose the mode of dispute resolution. Others welcome this as a step forward by the judiciary for introducing parties to an alternative to the adversarial process which further gives disputants a wider range of options before opting for the conventional modes of dispute resolution. This seems to increase the ambit of discretion rather than limiting their options.
In the same breath we, mediation enthusiasts, believe that parties can always choose to opt-out at any stage of the mediation proceedings and revert to litigation, abundantly clarifying that mandatory mediation only insists on trying the process, but does not compel them to reach a settlement.
Mandatory mediation is a double-edged sword. The power of a mediation proceeding majorly lies in its structure and process. It provides disputants the choice and flexibility to design the process according to their needs, providing them the opportunity to self-determine the terms of settlement in a confidential, cost and time effective manner. We must note, time is of essence and the Right to a Speedy Trial is an intrinsic part of Right to Life guaranteed under Article 21 of the Indian Constitution. Mandatory pre-litigation mediation upholds it in both letter and spirit.
In this context, we understand how the advantages of mediation clearly outweigh the concerns of ‘infringing voluntariness’ if the standard procedure of the mediation process is adhered to.
Interpreting the accolated Italian Model of Mandatory Mediation and its relevance in The Indian Context
Italy had a similar litigious nature like India with a huge backlog of cases. In light of the current trends, it would be wise to prevent any hostile responses from the legal community at a later stage. Italy has set a precedent. This may be a golden opportunity for India to learn from Italy’s experience while introducing mandatory mediation reforms from 2010-2013.
The Italian model employed a two-fold strategy: Firstly, developing and promoting the culture of mediation and secondly, introducing a regulatory framework and incentivizing mediation.
In 2010, they began with two approaches: recourse by voluntary agreement and recourse as ordered by a judge in consonance with a 2008 decree: thus, mandating mandatory pre-litigation mediation period in civil and commercial cases. This move faced widespread criticism from lawyers across the country. Advocates went on a national strike, abstained from attending hearings and incited their clients to protest against the new law.
In 2012, the court ruled that the Italian government overreached its legislative authority by making full mediation a condition precedent to access courts. However, in 2013, Italy enacted a decree which amended the previous decree of 2010, by introducing a third approach, ‘required initial mediation session’ for a mandatory period of four years, for civil and commercial disputes.
Key takeaways from the Italian model that helped overcome obstacles and eventually gain widespread acceptance among major stakeholders, that India may incorporate in its mediation law are as follows: –
A statistical report in 2017 revealed that the ‘initial required mediation session’ with an easy ‘opt-out- option had proven to be effective. Of the 90% newly-initiated filings, in 50% of the filings, the parties chose to proceed with mediation after the initial session, which is truly revolutionary.
The current state of affairs in India
Mediation is deeply embedded in the Indian ethos and was prevalent in India way before the arrival of British (17th Century) as stated by Chief Justice of India N.V. Ramana. He explained how the Indian epic Mahabharata made an early attempt at mediation.
Mediation’s presence and recognition is found in S.89 of the Code of Civil Procedure and various other legislations in India. The Mediation Training Manual of India clearly points out ‘The absence of consent for reference does not affect the voluntary nature of the mediation process as the parties still retain the freedom to agree or not to agree for settlement during mediation. Mandatory mediation through courts has now a legal sanction’. Astonishingly enough, mediation is yet to gain the desired momentum in India mainly due to lack of awareness, need of a standalone legislation, limited trained professional mediators, scarcity of mediation ready lawyers, and erosion of community-based indigenous dispute resolution mechanisms which were deep rooted in the pre-British era.
“Prescribing mediation as a mandatory first step for resolution of every allowable dispute will go a long way in promoting mediation. Perhaps, an omnibus law in this regard is needed to fill the vacuum.” Says the Chief Justice of India N.V. Ramana.
The way ahead for India – professionalise the process of mediation
In August 2020, The Bar Council of India made mediation a compulsory subject in Law schools. Such a concrete step highlights how pivotal it is to familiarise such alternative modes of dispute resolution at the very onset of one’s legal journey. In September 2021, the Union Law Minister of India, Kiren Rijiju asserted that the national government is absolutely ready to introduce a bill on mediation in the upcoming 2021 winter session of parliament. All eyes are keenly set on this new law with high hopes to turn a new leaf in the overwhelmed Indian judicial system.
The legal fraternity has an indispensably active role to play in determining the success of pre-litigation mediation in India, even if mandatory mediation provisions are strictly complied with, the picture isn’t as rosy as it seems. As aforementioned, India lacks a conducive environment for effective mediation. It is essential to generate awareness among disputants, lawyers, students and the community at large. With the tabling of the mediation bill, India definitely requires to be equipped with professionally trained mediators and mediation ready lawyers to ride the wave. Currently, advocates themselves lack trust in the process viewing mediation as a distributive rather than an integrative tool. A change in mind-set is key at this stage which requires all stakeholders across the spectrum to unanimously bring about the desired difference of first opting to mediate rather than to litigate.
To conclude, we believe welcoming mandatory meditation at the pre-litigation stage seems to be the most viable solution and an instrumental weapon to reduce the burden of our judicial system and improve its efficiency. It is necessary to appreciate the value of dialogue and collaboration with the numerous perspectives it brings to the table through innovative solutions. It has undoubtedly been a game-changer globally, across the US, Scandinavia, China, Australia and New Zealand. This must serve as an eye-opener for India providing it valuable insight to formulate a mediation legislation with suitable amendments. On that note, let’s mediate today, and consider alternatives tomorrow, busting the old age myth that mandatory mediation does not mandate you to resolve your dispute through this process, but to merely try it! #Trymediationfirst
 Svatos M. (2013, November). Mandatory Mediation Strikes Back. Mediate.com. http://mediate.com/articles/SvatosM1.cfm
 Ibid 10
 Ibid 10
D’urso, L. (2018, April 4) Italy’s ‘Required Initial Mediation Session’: Bridging The Gap between Mandatory and Voluntary Mediation. The Newsletter of the International Institute for Conflict Prevention & Resolution. link
 Ibid 15
 Roy, D. (2021, July 17). “Mahabharata an early attempt at mediation, mediation embedded in Indian ethos:” CJI NV Ramana at India-Singapore Mediation Summit. Bar and Bench – Indian Legal News. link
 Ibid 19
Originally published in Inc magazine. No matter how intense the conflict is in your life and business, chances are it's relatively small in comparison to what Aldo Civico has been...By Aldo Civico, Bill Carmody