The establishment and operationalisation of the Mediation Council of India – a cornerstone of the Mediation Act, 2023 – remains one of the most anticipated shifts in our legal landscape. While the Act underwent three years of rigorous deliberation before receiving Presidential assent in September 2023, the full weight of its promise has yet to be felt. Nearly three years since its enactment, the formal infrastructure for mediation service providers is still awaiting legal activation.
Even the institutions that played a pivotal role in drafting the legislation now sit in a state of expectant limbo. Far from being a mere administrative hurdle, the Council represents a transformative opportunity: a chance to democratise justice by providing a robust, regulated framework for resolving disputes outside the traditional courtroom. For a nation burdened by litigation, the Council is the missing key to making ADR a functional reality. As we know, the hallowed halls of Indian courts, characterised by towering grandeur and mountains of paperwork, are frequently the setting for the most intimate conflicts of the human experience.
Marriage, divorce, child custody, and inheritance disputes are more than just legal issues; they are fundamentally human crises that tear at the very fabric of our society. While traditional adversarial litigation provides a required legal structure, its “winner-take-all” nature is increasingly viewed as a poor instrument for addressing the many intricacies of family life. Traditional litigation, while providing legal status, is frequently inefficient and contentious, endangering the strength of familial bonds. As we advance toward a more compassionate legal future, the transition to mediation represents a restorative revolution that prioritises discussion over conflict. Mediation is an important alternative dispute resolution (ADR) strategy that emphasises consensual problem-solving and party sovereignty.
A mediator, as opposed to a court, serves as a neutral third party who stimulates contact and assists parties in exploring settlement options without limiting their decision-making abilities. This method is particularly useful in family conflicts, where emotional acceptance of a choice is critical. Mediation, which embraces the ideas of “therapeutic jurisprudence,” evaluates the impact of law on emotional well-being, aiming to mend issues rather than inflicting additional stress or aggression. It separates people from the situation, allowing them to focus on underlying issues such as respect and parental identity rather than entrenched legal beliefs. Mediation has already been deeply ingrained in India’s statutory and judicial architecture.
The Family Courts Act of 1984 specifically requires these courts to pursue amicable settlements and authorises the use of counsellors and mediators. Furthermore, the judiciary has interpreted Section 89 of the Civil Procedure Code as a requirement to send matters to ADR whenever the nature of the disagreement allows for it. Landmark decisions, such as Afcons Infrastructure Ltd. v. Cherian Varkey, have established that marital and custody issues are best suited for mediation because they necessitate a “non-adversarial” approach that traditional litigation lacks. Settlements reached through court-referred mediation, if accepted by the court, take the form of a judicial decree, ensuring that they are both forceful and enforceable. However, the Indian context needs a nuanced approach to mediation to avoid unintentionally overlooking power inequalities.
Critics and legal feminist literature warn that informal institutions can sometimes legitimise existing patriarchal power systems, thereby forcing vulnerable parties to enter into unequal agreements. To address this, the judiciary emphasises that mediation must be voluntary and informed, with parties having the right to withdraw if they feel forced or treated unfairly. Furthermore, cases involving serious charges of domestic violence or abuse are often deemed improper for standard mediation, necessitating additional safeguards and court proceedings. This ensures that the desire for efficiency does not trump the fundamental demand for substantive equality and gender justice. The most compelling reason for mediation is to protect the “silent stakeholders”: children.
In the heat of litigation, children are routinely used as targets for opposing parental claims. Mediation, on the other hand, promotes child-sensitive and cooperative parenting arrangements that prioritise the “best interests of the child,” which is a pillar of modern family law. Mediation creates a future in which parents can contact despite their separation by reducing the length and intensity of disputes. In a constitutional democracy, access to justice is more than just walking into a courtroom; it also entails engaging in a dignified, equitable, and humane process.
Mediation accomplishes this by humanising the legal process while being firmly rooted in normative safeguards. In view of the importance of mediation in dispute resolution, the Government of India should move quickly. The recent calls for reform from the highest offices of the land have added a sense of urgency to India’s alternative dispute resolution (ADR) mission. In a series of recent addresses, the Chief Justice of India has emphasized the vital need to formalize mediation services, even advising litigants to explore this path before entering the courtroom.
This push is further championed by the President of India, who highlighted a significant incentive: the refund of court fees for parties who settle their disputes through mediation. With such powerful backing from the judiciary and the executive, the ball is now in the Law Ministry’s court. The time has come to accelerate the institutionalization of the Mediation Council of India. By doing so, the government will provide mediation institutions with the formal recognition they need to become true partners in the national effort to ensure the speedy and efficient disposal of disputes.
(THE WRITER IS FORMER INTERNATIONAL SENIOR ADVISER, UNITED NATIONS.)