“The Mediation Advantage – The Finality of Consensual Settlement” Justice Hima Kohli At The 1st IAMC India Mediation Day

The session was attended by High Court Judges, arbitrators, senior advocates, industry leaders, senior mediators and members from various government departments who witnessed three panel discussions namely Relevance of Mediation in Cross Border Disputes, India as an Emerging Hub of Institutional Mediation and IAMC, Hyderabad’s Mediation Roadmap, 2025.

In the opening remarks, Justice L. Nageswara Rao, Former Judge, Supreme Court of India, highlighted the Justice B.N. Srikrishna Committee Report which had recommended the growth of Institutional Arbitration in India which founded the base of IAMC in Hyderabad. He remarked, “There is an imperative need to offload the burden the courts in India and the need for a swift alternate dispute resolution which was the basis of establishing IAMC in Hyderabad.” Further, “The future looks promising for those who are interested in doing mediation. It can’t be restricted to a few people or within the people in the legal profession. Domain expertise is very important in Arbitration and Mediation.”

Justice Hima Kohli, Judge, Supreme Court of India said that the use of ADR in ancient and medieval India has been very comprehensive and in contemporary India ADR is famously known as “Appropriate Dispute Resolution” mechanism. “The benefits of Mediation are plenty. They include its non-adversarial and voluntary nature, flexibility and confidentiality of the process, its speed and cost-effectiveness, and the finality of consensual settlements. As a mode of ADR, Mediation helps to reduce the caseload burden on courts. It contributes towards the financial and commercial growth of the country.”

Justice Kohli laid down the statistics as per the National Legal Services Authority for the year 2021-2022 which demarcated India to have 464 ADR centres of which 397 were functional and with 16,565 mediators working in 570 Mediation Centres. In this duration, nearly 53,000 cases were settled through Mediation. Justice Kohli further commented on the laws of mediation in other countries stating that “Australia, Singapore, and Italy have standalone laws on Mediation. But there is a legislative vacuum in India, which is going to be filled up soon in India with the Ministry of Law having drafted the Mediation Bill, 2021 that seeks to promote Mediation particularly institutional Mediation and provides a mechanism for enforcing mediated Settlement Agreements. Presently, the Bill stands referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, for discussion.” The Bill has the benefits of a fixed timeline for resolving disputes, proposal to establish Indian Mediation Council and Recognised Mediation Serviced Providers, proposal to make mediation agreements binding once it is signed, limited scope of challenge to the mediation agreements, confidentiality clause on information exchange, impartiality and independence of the accredited and trained mediators to conduct the mediation process effectively and mandatory pre-litigation mediation in commercial disputes. .

“ODR has emerged as the preferred mode of dispute resolution,” especially during the Covid-19 pandemic when physical interactions were restricted. The transition required careful consideration to identify a reliable and secure platform for conducting mediation. “Currently, there are no specific regulations governing ODR in India, but ODR providers and users can still rely on the existing legal framework, best practices and data protection regulations to ensure that their online Mediation activities comply with the relevant laws and regulations.”

It is hopeful that with increased ODR in India, Rules and Guidelines are bound to come up along with robust infrastructure, technical support and viable and clear protocols for conducting mediation using technology and for signing and sealing of Settlement Agreements. “The transition to online Mediation presented several challenges that required careful consideration and attention. One of the most significant challenges was to identify a reliable and secure platform to support the Mediation process.” She further suggested, “In all these processes, be it physical, on-line or hybrid, it is essential to recognise the importance of the human element in Mediation. The mediator’s role is critical in facilitating effective communication between the parties involved and help them find mutually beneficial solutions. In the case of online Mediation, Mediators must adapt their skills to an online environment, including building rapport and establishing trust with the parties involved.”

In conclusion, Justice Kohli remarked, “Time is not too far when Mediation will be cherished as a viable career opportunity for students and young practitioners. That is when the true potential of mediation as a preferred choice of dispute resolution will be realised.” She encouraged the inclusion of Mediation in the curriculum of universities and colleges in order to have trained mediators tomorrow.

Justice Kohli further suggested that the way forward in Mediation in India is through:

• “Increasing awareness through workshops, seminars, symposiums and outreach programs like the one organized by IAMC that target businesses, communities and individuals.
• Developing a robust infrastructure which includes a pool of trained and experienced Mediators, Mediation Centres with state-of-the-art facilities and a robust legal framework that supports the process.
• Encourage international participation by partnering with international organisations like SIMC and incentivising foreign parties to use Indian Mediation services.
• Foster a culture of Mediation which can be achieved by encouraging Mediation in Universities, Law Colleges, Educational Institutions, workplaces, and communities. It is essential to promote the idea that Mediation is a valuable tool for conflict resolution that can bring long-term benefits to all parties involved.
• Continuously improve the legal framework like The Mediation Bill, 2021 which after enactment will have to be constantly reviewed and revamped to remain responsive to the evolving needs of the society.”

Justice NV Ramana, Former Chief Justice, Supreme Court of India emphasized “The ability of resolving disputes in a faster pace will help the growth of society country nation or world.” He said that the world today has realized Arbitration and Mediation as one of the most powerful tools to resolve disputes. The power of mediation is understated, it has deep roots in the ancient India and Indian society. The ability of Lord Krishna in mediating the dispute of Pandavas and Kauravas was commendable, whose failure led to the cause of the war in the Mahabharata.

In his closing remarks, Justice RV Raveendran, Former Judge, Supreme Court of India, stated, “The culture of mediation is knowing about mediation. Knowing about mediation is knowing about the advantages of mediation. Knowing about advantages is knowing about disadvantages of litigation like delay, uncertainty in outcome, inflexibility, high costs, years and decades of pendency and difficulties of execution, and hostile atmosphere in courts.” While in mediation, parties willingly settle disputes and can be settled in just days which avoids high costs.

Mr. George Lim, Senior Counsel, Chairperson of Singapore International Mediation Centre (SIMC) said, “We try and reconstruct the past in courts while in mediation we look forward. He said that Mediation in Singapore was based on two principles: To clear backlogs and to leave the complex cases to judges and courts to deal with.

In cross-border disputes, time is so important for these people and that is why mediation is taking off. The future of Cross Border mediation is in using mediation early in investor/state dispute settlements. Governments and people are talking about mediation and the result is that today, even governments are mediating who weren’t interested in mediation 10 years back.

Tariq Khan, Registrar of International Arbitration and Mediation Centre (IAMC) Hyderabad delivered the vote of thanks to the IAMC Trustees, the Governing Council Members, Members of the IAMC Secretariat, the Members of Organizing Committee, the Special Guests from SIMC, Senior Trainers, Judges, Senior Advocate, legal practitioners and other industry leaders who made this event a grand success!