Not every case needs a trial. And the time for a mediation push is now

In many ways, mediation is different from much of the legal system. It is not bound by rules or procedure

One of the most effective and efficient ways of unclogging the justice system will be to have stronger filters and gate-keeping mechanisms at the initial stages. In other words, litigation and court proceedings are resorted to when there is no other viable alternative at all. This principle has seen various iterations becoming law, Section 89 of the Code of Civil Procedure being one of the highlights. Additionally, many contracts and agreements now contain clauses to refer disputes to arbitration proceedings. The Mediation Act of 2023 is another key legislation encouraging the settlement of disputes. Of late, this method has gathered momentum with the Chief Justice of India emphasising the importance of mediation as an effective way to resolve disputes. The “Mediation for the Nation” campaign is a similar push for this method to be resolved. Mediation certainly possesses tremendous potential, and now is the time to reap it, for several reasons.

First, with so many pending cases and a somewhat growing appetite for litigation, we need to remember that litigation should be pursued when other alternatives have been exhausted. Litigation is undoubtedly expensive, time-consuming and taxing. Out-of-court proceedings and settlements should be encouraged. In the United Kingdom, for instance, there are Pre-Action Conduct and Protocols. These usually must be exhausted before the beginning of any litigation. These include disclosure and exploration of Alternative Dispute Resolution (ADR) methods. The right to a fair trial precludes the right to go to court to pursue remedies. However, there are many cases where litigation is not a necessity, and ADR can be used, so much so that many disputes are resolved post commencement of litigation, by way of ADR. In cases like these, mediation should be encouraged. It is cost effective, time efficient and offers holistic solutions. In some cases, an apology or some conciliatory words alone can solve disputes.

Mediation is also inherently informal. The importance of a good mediator cannot be overemphasised. Mediation allows for solutions beyond what can formally be delivered. It is also centred around the mediator’s understanding of the issue at hand, the conflicting narratives and the scope to give a “reality check” to all parties. Mediation is also instinctive in some ways, and the mediator’s empathy, understanding and persuasive power play an important role. It is pertinent to note that the informal nature of the process, where the substance of the matter is not bridled by unnecessary formality, must be maintained. With that, the structure and approach must be sufficiently clear and dynamic but reasonably formal. Thus, it should be regulated within reason, keeping its essence as an informal way of dispute resolution whilst maintaining its sanctity as an effective tool.

Other than the necessity of having it as a core part of pre-litigation protocols, there are some other essential steps that the profession needs to take. First, as already stated, institutional or structured mediation should be a part of cases where it lends itself as an alternative to litigation. Second, training for mediation needs to be holistic at every level as a priority, beginning with law school. Infrastructure for mediation should also be scaled up with proper facilities for it to be carried out in an engaging way. Last, there should be clear guidelines that set a mandate for mediation. It is a tough task to balance informality and an action-based approach with structure and predictability.

Nonetheless, there is precedent for this. For instance, drafting clear questions of what each party wants, the cost incurred in case litigation is pursued, the best alternative to a negotiated agreement, timelines and most importantly, execution of the agreement and its oversight. This way, medication becomes the first step with a clear mandate.