Judiciary Flags Critical Flaws in Mediation Act, Calls for Cultural Shift Beyond Litigation

Bhubaneswar, Odisha – In a series of powerful addresses at the 2nd National Mediation Conference, senior members of the Indian judiciary, including Supreme Court Justice Surya Kant and Chief Justice of India B.R. Gavai, lauded the enactment of the Mediation Act, 2023, as a landmark step while simultaneously raising significant concerns about potentially self-defeating provisions within the new law. The conference became a platform for a critical examination of the Act's text and a broader call to embed mediation into the fabric of Indian society, moving beyond its confines as a mere alternative to courtroom litigation.

Justice Surya Kant's Warning: A Statutory Loophole Threatening Mediation's Efficacy

The most pointed critique of the new legislation came from Supreme Court Justice Surya Kant, who flagged a specific provision he fears could undermine the very purpose of mediation: efficiency and finality. His concern centers on Clause 4 of Sub-section 2 in Section 28 of the Mediation Act, 2023. This section outlines the grounds on which a mediated settlement can be challenged.

Section 28 allows challenges based on fraud, corruption, or impersonation. However, Clause 4 introduces a broader, more ambiguous ground: a settlement can be contested if the dispute was "not fit for mediation" under Section 6 of the Act.

“My worry is about clause 4 of sub-section 2… where it says mediation settlement can be challenged where the mediation was conducted in disputes or matters not fit for mediation under Section 6," Justice Kant cautioned the audience of legal professionals. "This is too wide and too open which at times will invite a full fledged trial before civil court despite a settlement and this issue needs to be looked at.”

The implication of Justice Kant's warning is profound. It suggests that a party, potentially regretting a settlement, could re-litigate the matter by arguing that the original dispute was fundamentally unsuited for mediation. This could open the floodgates to post-settlement litigation, effectively dragging parties back into the adversarial court system and negating the time, cost, and emotional energy saved through mediation. This legislative ambiguity, he argued, risks creating a procedural loophole that defeats the Act’s primary objective of providing a swift and binding alternative to litigation.

The Philosophy of Mediation: "Infinite Solutions" vs. "Winner-Loser" Verdicts

Beyond the statutory critique, Justice Kant delivered a compelling philosophical argument for the cultural adoption of mediation. Contrasting the "narrow frame" of courtrooms, which typically produce a winner and a loser, he described mediation as a process that "expands that frame," empowering parties to discover creative and mutually agreeable outcomes.

Using a mathematical analogy, he explained, “Some equations admit no solution. Some yield only one. But the most remarkable are those with infinite solutions. Disputes are also the same... when dialogue begins, conflicts open into many possibilities.”

He stressed that while courts provide essential legal answers, they often leave the "deeper currents of human conflict unresolved." Mediation, he argued, reaches into the "hearts and relationships that lie beneath the dispute" in a way the law alone cannot. He concluded with a powerful distinction: “If trials deliver verdicts, mediation delivers futures.”

This vision requires more than just legislation. “Legislation, however well entitled, cannot by itself change culture. It cannot create trust. It cannot nurture dialogue. That responsibility rests with us,” he asserted, placing the onus on the legal community to build systemic public trust through documented campaigns, institutional credibility, and robust accreditation for mediators.

CJI Gavai's Call for Grassroots and Community Mediation

Echoing the theme of a cultural shift, Chief Justice of India B.R. Gavai emphasized that mediation must not remain a tool confined to the legal profession. He advocated for its integration into community life, harking back to traditional Indian practices of resolving disputes through dialogue.

The CJI highlighted the significance of Section 43 of the Mediation Act, which provides for community mediation to settle disputes affecting "peace, harmony and tranquillity amongst the residents or families of any area or locality."

“This provision underscores that mediation should be cultivated as a practice of the people, for the people, empowering communities to take an active role in resolving disputes peacefully and collaboratively," Justice Gavai stated.

He proposed that Legal Services Authorities should spearhead this popularization at the grassroots level. He suggested adapting existing training modules, such as NALSA’s 40-hour program, for ordinary citizens, simplifying them and making them accessible in regional languages. "By equipping common people with the knowledge and tools of mediation, we can foster a culture where disputes are re[solved] collaboratively," he urged.

The Imperative of Accessibility and Government Buy-in

The conference also addressed the practical pillars required for the Act's success. Justice Kant called for making the mediation process truly inclusive by conducting it in vernacular languages and local dialects. He cited the successful example of mobile mediation camps in Tawang, Dirang, and Bomdila in Arunachal Pradesh, which overcame geographical and linguistic barriers by adapting to local needs.

Furthermore, he underscored the pivotal role of the government as the country's largest litigant. Referencing Section 49, which mandates prior written consent from a competent authority for settlements involving the State, he connected it to the National Litigation Policy of 2008. "If that policy is meaningfully implemented, it will go a long way," he said, suggesting that proactive government adoption of mediation is crucial for reducing the judiciary's caseload.

This point was strongly reinforced by Manipur High Court Chief Justice M Sundar, who stressed the urgent need to notify key sections of the Act, particularly those concerning the finality of settlements (Sections 27 and 28) and the procedures for government-involved mediations (Section 49), calling them the "soul of the statute."

As Justice Sachin Datta of the Delhi High Court noted, mediation is "no longer the 'poor cousin' of arbitration or litigation," citing a success rate of over 50% in court-annexed mediation in Delhi. The challenge now, as articulated by the nation's top judicial minds, is to build upon this growing credibility by refining the statutory framework, fostering unwavering public trust, and cultivating a deep-rooted culture of dialogue that can truly transform India’s justice delivery system.