Mediation cannot truly succeed in India until governments and their institutions stop pursuing litigation merely to exhaust judicial avenues despite having no likelihood of success, Supreme Court judge Justice BV Nagarathna has cautioned. Such an approach, she said, drains the country’s resources and judicial time, while stunting the growth of mediation as a credible dispute-resolution mechanism.
Delivering her address at the 2nd National Mediation Conference in Bhubaneswar on Sunday, Justice Nagarathna pointed to a June 3, 2024 office memorandum issued by the Union finance ministry which laid out new guidelines for arbitration and mediation in domestic public procurement contracts. The memorandum acknowledged the “peculiarity of government-led litigation,” noting that acceptance of an adverse award without exhausting all judicial remedies was often seen by officials as “improper,” even though finality is built into the process.
Reacting to this, Justice Nagarathna said: “If a governmental body keeps initiating another round of litigation only to exhaust judicial avenues where there exists no likelihood of success, our country’s resources will continue to be improperly used and judicial time misallocated. For any radical improvement in government-led dispute resolution, and most specifically for propelling mediation as a legitimate method, there is an impending need to transform this outlook.”
She added that if mediation decrees entered into by state authorities are constantly viewed with suspicion by senior officials or their successors, then partnerships between government and private entities in mediation “will never be able to gain ground.”
Justice Nagarathna also underscored the need for sector-specific mediation, stressing that disputes in areas such as environment, healthcare, intellectual property and corporate governance required specialised skills. In particular, she urged the Mediation Council of India to create a panel of accredited “green mediators” trained in environmental law, climate science, public policy and socioeconomic impact assessments.
Environmental conflicts, she said, are rarely straightforward. “They are multifaceted socio-ecological challenges involving a wide array of stakeholders and a delicate balance between development imperatives and ecological preservation. Mediation, with its flexibility and participatory nature, can provide quick, consensual, and forward-looking solutions — from compensation to habitat restoration or community benefit-sharing agreements,” she said.
Pointing to the US Environmental Protection Agency’s success in institutionalising Environmental Collaboration and Conflict Resolution (ECCR), the judge said India too could draw lessons by professionalising and training cohorts of environmental mediators, while ensuring meaningful participation of all stakeholders.
Justice Nagarathna further highlighted the importance of mediation in healthcare disputes, where power asymmetry between patients and large hospitals could be balanced by involving patient advocacy groups in the mediation process. About intellectual property disputes, she said that, unlike litigation, such disputes can benefit from mediation’s confidentiality and flexibility to craft business-oriented solutions while preserving relationships. Similarly, mediation can preserve value and reputation while providing quicker solutions than years of litigation for corporate governance and start-up ecosystem conflicts, she said.
Justice Nagarathna also emphasised the role of restorative justice through mediation in juvenile cases, advocating for victim-offender mediation to encourage accountability and reintegration rather than retribution.
Finally, she stressed that the success of mediation depends on building public trust in mediators’ independence and impartiality. With most mediations in India being ad hoc, she mooted the idea of a formal code of conduct for mediators, even as the recently established Mediation Council of India works towards strengthening the institutional framework.
Every mediator functions as a spoke in the larger wheel of the Indian mediation ecosystem, said the judge, highlighting that their conduct has a direct bearing on people’s perception of mediation as a serious and appropriate mechanism of dispute resolution.
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