MEDIATION IN INDIA
How was mediation introduced in your country?
India has been facing a pendency issue in our court system which has been growing progressively acute. At present, we have over 40 million cases pending before our courts – 4 million more compared to Feb 2020. As part of the reforms to the justice system to better manage the backlog there has been a concerted push to ADR processes. The first real push for ADR was the insertion of Section 89 to the Code of Civil Procedure 1908 (“CPC”) through an amendment in 1999.This provision empowers the court to refer a case for resolution through one of the ADR modes wherever it appears that there ‘exists elements of a settlement acceptable to the parties’.
While the statute books gave the necessary impetus as early as 1999, adoption of ADR was minimal. In 2005, The Supreme Court through a landmark judgement took a strong pro-mediation stance which led to the framing of model rules and establishment of court annexed mediation centres, bringing mediation into a formal framework for the first time. The Mediation and Conciliation Project Committee (MCPC) was set up by the Supreme Court to oversee the growth of court annexed mediation programs through the country. Today there are over 39,000 mediation centers around the country. 
The past five years has also witnessed the growth of private mediation in the country. This has allowed for disputes to be mediated pre-litigation, the expansion of mediation services to a range of commercial disputes from low value/high volume cases to complex commercial disputes and the professionalization of the services of a mediator. The entry of private players has also supported the growth of tech platforms providing online dispute services, laying the foundation for a completely new way disputes in India are managed and resolved.
What were the main challenges you faced introducing mediation into your country?
a. Mindset to mediation
Although the culture to mediate is not new to India’s history, nearly 300 years of the Anglo-Saxon court system has resulted in a strong adversarial mindset in the Indian disputant. Mediation is often seen as a sign of weakness resulting in disputing parties refusing to try mediation.
b. Bar Resistant to mediation
Lawyers are trained in the adversarial system and are hesitant to propose mediation to their clients. Fear that their clients will see them as incapable/ fear of diminished revenue (court case in India is ~15 years and lawyers typically charge their clients on a per appearance basis) / lack of familiarity with the mediation process are some of the barriers to the adoption of mediation by the legal community.
Although the Supreme Court has shown great leadership to promote mediation, judges in India have not been able to effectively use mediation to address the docket crisis. Some of the reasons for the lack of full utilization of mediation by the judges include (1) too many cases on the case list on a given day resulting in the inability on the part of the judge to apply his/her mind to refer a case to mediation (2) Inadequate training to judges to identify cases suitable for mediation (3) incentives are structured around disposal of cases through traditional court hearings – no incentive for using ADR (4) lack of proper structures within the court system to support a strong ADR referral framework.
Although mediation was formally introduced into our legal vocabulary in 1996, there is still very little awareness about the process. When our institution, CAMP was set up in 2015, nearly 10 years after the establishment of court annexed mediation programs in the country, the knowledge of mediation was virtually non-existent. Awareness amongst all the necessary stake holder groups – parties/lawyers/judges/government was extremely low to support the growth of a new dispute resolution movement.
Mediation was introduced to India through structured court annexed mediation programs. The growth of the mediation movement however has been largely ad-hoc. Mediation services have been mushrooming throughout the country through different institutions and individuals. India has not been able to create a dedicated umbrella body, constituting experts representing gender, regional, generational and communal diversity, to lead the growth of the movement from the adoption as well as standards perspective.
When mediation was first introduced through the court annexed mediation programs, mediators (all lawyers) provided their services on a pro bono basis. Additionally cases that were referred to mediation were largely matrimonial disputes. This trend has challenged the transition of mediation as a profession as well as the extension of mediation to civil and commercial disputes.
ADR processes in India are governed by the Arbitration and Conciliation Act. Unfortunately Mediation is not covered under this Act. The lack of a stand alone legislation on mediation that protects the fundamental concepts of confidentiality, voluntariness and self-determination as well as gives enforceability to a mediated settlement agreement, has stood in the way of mediation gaining the necessary confidence. The growth of private mediation has also been impacted by the lack of strong legislation giving legal validity and enforceability to a mediated settlement agreement.
How have you addressed these challenges?
Push to mediation legislation – umbrella and other legislations
Despite the absence of an umbrella mediation legislation, the parliament has recognized the value and need for this process and introduced clear-cut provisions for mediation in four legislations which govern different categories of disputes. These legislations have without a doubt, created some degree of credibility and brought the process into the meaningful consideration of the legal community. These legislations are:
Despite these efforts, there is a need for an all encompassing mediation legislation. Seeing this need, the Supreme Court acknowledged in 2019 that there is a ‘dire need to enact Indian Mediation Act’. Following this, the Court set up a committee to prepare a draft legislation for mediation. The draft legislation has been submitted to the Government for consideration.
Creating Awareness and Influencing the Mindset
Creating awareness of the process at the Bar, industry associations, law schools and at the government has been crucial to building a culture of mediation. Specific awareness efforts that are noteworthy include:
Growth of private mediation service providers
The growth of private mediation service providers over the past 5 years in India has challenged the notion that mediation is a pro bono service for matrimonial disputes. Mediation is being used for a range of commercial disputes such as IP, joint venture, partnership, landlord-tenant, commercial contracts, banking & finance etc. Mediation is also slowly growing as a profession with more clients willing to pay for the services of a mediator with specialized skills to mediate complex disputes.
Innovation in the law and justice space
Collaborative Dispute Resolution has created the space for innovation in the law and justice space. With the coming together of lawyers, technologists/entrepreneurs, policy think tanks, organizations dedicated to support innovation in the law and justice space, funding organizations, NGO’s and academics, dispute resolution is slowly moving outside the confines of a court hall.
These ODR service providers have been able to rapidly scale up and show the value and effectiveness of the process for a range of disputes from payment of wages to migrant workers to multi million dollar cross border disputes. This has supported a tremendous shift in the mindset towards ODR/ADR.
Active engagement to build the ‘social muscle’ to collaboration
In order to grow the sector there is an understanding that behavioral response to dispute needs change. Efforts to influence that thought process on the societal level is underway with the growth of organizations focused on educating the community on the value of collaboration and dialogue. There is an understanding of the need to build a ‘social muscle’ that supports a collaborative response to conflict.
What are the factors that have supported the growth of mediation in your country?
a. An overburdened court system
A litigant in a commercial case in India, spends over 1,445 days, or almost 4 years in-and-out of courtrooms and ends up spending 31 per cent of the claim value in out-of-pocket expenses such as legal fees and court fees. For certain dispute categories, the statistics are worse – the average pendency of a land acquisition case, from its creation to its resolution by the Supreme Court, is 20 years. These figures are pre pandemic. Some estimates speculate that the pandemic has set our courts behind by over a decade. This desperate reality of the Indian judiciary has caused members at every level of the judiciary (especially the Supreme Court), the government, business and community to call for a new way to manage dispute resolution. Out of no choice, alternate processes like mediation (online and in-person) are increasingly being seen as extremely effective and efficient ways to address the pendency issue in India.
COVID has been a game changer for the ADR/ODR movement in India. The closing of court halls forced the digitization of the court system. Litigants and lawyers for the first time experienced ‘dispute resolution not as a court where justice is administered, but as a service which is availed of’.
Even though the Courts went online, the pendency issue has reached an all-time high with backlogs swelling at every level of the judiciary. There is research to suggest that the COVID pandemic threatens to set the Indian dispute resolution system back by a decade. ADR/ODR is being seen as the paradigm shift solution that could bring the much needed relief to our judiciary at this time.
There has been a surge in the number of ODR start ups entering the law and justice space creating an incredible energy and buzz to change the status quo. These innovative thought leaders have brought in all the stake holders – businesses, government, mediators, lawyers, think tanks etc to accelerate the creation of the eco system for mediation.
With the growth of ODR a wide spectrum of cases are accessing mediation. Business enterprises are adopting ODR and seeing the effect of these processes not only in resolving disputes quicker and cheaper but also in improved customer satisfaction.
Complex commercial disputes are also increasingly accessing mediation. Parties are finally having the chance to experience the efficiency and effectiveness of alternate processes. As the critical mass of positive users increases, the process is gaining credibility and acceptance in the minds of the larger public.
Under the leadership pf the Mediation & Concilliation Project Committee (MCPC) every state and union territory in India has multiple court annexed mediation programs at the district and state level. This has laid a strong foundation to build the mediation movement. Many lawyers are introduced to mediation through these court annexed program and hundreds of thousands of citizens have found resolution at no cost.
Where do you see mediation in your country in the next 5 years?
 Salem Advocate Bar Association v Union of India AIR 2005 (SC) 3353
 MR Krishna Murthi v New India Assurance Co. Ltd. 2019 SCC OnLine SC 315
 Ajmer Singh, ‘Supreme Court Forms Committee to Draft Mediation Law, will send to Government’ (The Economic Times, 19 January 2020) accessed 1 June 2020
 Doing Business 2020. World Bank Report https://www.doingbusiness.org/content/dam/doingBusiness/country/i/india/IND.pdf
 Same as above
 Justice Chandrachud speech at Key Stakeholders Meet for Advancing Online Dispute Resolution(ODR) in India hosted by NITI Aayog, in association with Agami and Omidyar Network India, June 2020
 ODR Handbook
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