Tareekh pe Tareekh… the popular dialogue of a Bollywood movie released thirty years ago typified the state of the judicial system in India where the litigants juggle up for a speedy trial amidst endless dates for hearing, delaying and in many cases eventually denying the justice. Three decades since, the dialogue remains relevant still in 2025 as the pendency of cases remain the biggest challenge for the judicial system in India. With around 51 million cases pending till December 2024, burdened courts impede the justice delivery system in spite of the disposition for alternate dispute redressal (ADR) mechanism to ease the backlog.
With the government being the biggest litigant, district courts alone share around 87% of the pending cases while over 180,000 cases in high courts have been stuck in trial for more than 30 years. The Mediation Act 2023 came as a shot in the arm but even after more than a year of the law in place it is yet to be notified and the Mediation Council of India (MCI) which was to frame the rules for the conduct and implementation of the law remains to become a reality.
In April 2023 the then chief justice of India D Y Chandrachud while strongly pitching for adopting and encouraging mediation as a mode of dispute resolution other than litigation emphasised that “mediation is much more than a movement to de-clog the courts” as it has the potential to portray “justice as collaborative rather than adversarial”. The Mediation Act was the reality the same year in September but even after more than a year of the law being in place it is yet to be notified and virtually remains ineffective and a “useless piece” of paper as the advocates and mediators who had strongly pitched for the Law choose to call this.
In 2006 when the Mediation as a process for an alternate dispute redressal mechanism was established in India, it was thought to be an answer to the huge pendency in courts while also significantly limiting the litigation time. Mediation was even considered a choice over Arbitration which is governed through Arbitration & Conciliation Act 1986, as the mediation not only is a time bound process and pocket friendly, the settlement agreement too is binding unlike the Arbitration agreement which could be challenged in the courts. Mediation as a tool of ADR has come a long way since. Arbitration, despite being governed by a notified law, had its challenges, “we have struggled with the quality of arbitration and arbitrators over the years. Therefore, it is not only important to have Mediation Act notified but also a MCI to set the rules and govern the mediation process in the country”, maintains Mrs Veena Ralli, the Delhi High Court Mediation Centre (DHCMC) Organising Secretary and a mediator with more than 40 years of legal experience.
Mediation kicked up as a choice against the Arbitration over the years because of various factors which included the absence of a governing body for the arbitration like the proposed MCI, lack of time bound nature of the settlement process and most importantly the possibility of challenges to arbitration settlements in the court.
Samadhan (Solution) was the first of its kind mediation centre established at the Delhi High in 2006. The advocates were agitated. They protested against the centre’s opening assuming mediation would hit hard on their earnings but a humble two room centre then, is a state-of-the-art building dedicated to mediation and conciliation centre. Many of those lawyers who protested are now one of the top mediators. As of now the centre handles only the court referred cases and there has been a continuous uptick in the number of cases referred to the centre. Besides settling nearly 25% of the 33,406 cases referred to it by the court as of February 2023, data shared by the centre for the past three years indicates that it has settled nearly as many cases that were not referred to it by the court, including those related to ongoing disputes and requests for pre-trial intervention by lawyers.
Currently there are Mediation centres not only in various high courts and the one being run by the supreme court too, private mediation centres have also sprung up in past years looking at the prospects of private mediation which is being provisioned in the Mediation Act. “There is a huge potential in Mediation as a tool of dispute redressal as it not only breaks the wall between the litigating parties but also builds the bridge for a mutually agreeable solution”, maintains Puja Anand, an advocate practising in the Supreme Court of India and a trained mediator since 2009. According to her the role of the mediator is of the facilitator and conciliatory in reaching the agreement. “The parties choose for themselves what they want and the agreement is settled only when it suits all the parties involved hence the mediation settlement is a win-win situation”, quips Puja.
While there is no disagreement on the role and potential of Mediation as one of the most effective alternatives to ease the court from burgeoning case load and there is also agreement among the mediators and the advocates who have battled for mediation law that even if the Mediation Act is notified and the MCI is established there are problems galore for choosing mediation as the first choice of dispute resolution.
“There are issues indeed”, points out Veena Ralli, “although there are few sections of the Mediation Act which are notified and we are already working through these but let us first create the Mediation Council of India. Even the government wants to focus on the quality specially when the Mediation Act has the provision for private mediation. It is important to have a certification and accreditation mechanism to train the mediators who can practice under strict guidelines.”
Currently the mediation is conducted only in the matters which are referred by the courts to the mediation centres run by the government, Delhi High Court being the only exception which is run by the Bar. The matters which the court feels fits are referred to the mediation centres. Since the Mediation Act allows private mediation even a non advocate can be a mediator once the Act is notified. There are many private mediation institutes which are conducting mediation training. The legal fraternity is demanding for rules and guidelines to be framed which could be guided through a single governing body i.e the proposed Mediation Council of India.
“We have to see what the primary aims and objectives of mediation have been and what are the additional provisions.There are gaps to fill. Infrastructure for mediation needs to be enhanced and trained mediators are a big issue. It is also important to encourage pre-litigation mediation”, emphasises Justice (Rtd) Mukta Gupta, Former Judge, Delhi High Court.
One of the objectives of the Mediation Act has been to ease the court of the litigation for which it has the provision of pre-litigation mediation in the Act. The purpose has been to make meditation the first choice of dispute resolution, says Justice Gupta. She further adds, the onus lies on both, the advocates who can guide the disputing parties to the mediation as well as on the litigants’ willingness for adopting mediation as the choice. “Basic reasons for failure of the mediation process in majority cases has been that parties are unwilling for mediation as a settlement process. They except for court annexed mediation either to buy out time or just to impress upon the courts.” Much work is still needed according to Justice Gupta besides just the notification of the Mediation Act and formation of MCI for mediation to become “a way of life.” Veena Ralli also agrees that community sensitisation is important to give momentum to bring mediation as the first choice for dispute resolution particularly in the rural areas.
While the notification of the mediation Act is an important step forward besides the formation of the Mediation Council of India there seems a general consensus that a general sense of willingness is needed among the community to choose the mediation in order to ease the courts burden. “Mere lip service” as Justice Mukta Gupta puts this is not enough by the litigating parties to accept the court referred mediation.
The other important step is to enhance infrastructure for private mediation in order to fully reap the benefit of the mediation Act so that the litigants do not have to move between Tareekh pe Tareekh struggling to get speedy justice.
(Binny Yadav is a New Delhi based journalist and a trained mediator)