Supreme Court Justice Surya Kant raises alarm over Mediation Act, stating Clause 4 of Sub-Section 2 is too broad and may lead to full trials despite mediation settlements.
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Odisha: Supreme Court Justice Surya Kant raised concerns over a provision in the Mediation Act, 2023, cautioning that its current wording could undermine the very purpose of mediation. Speaking at the 2nd National Mediation Conference in Odisha, Justice Kant emphasized the need to balance accessibility and accountability while ensuring mediation remains a practical alternative to litigation.
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Justice Kant specifically pointed to clause 4 of sub-section 2 in Section 28, which allows mediated settlements to be challenged if they relate to disputes “not fit for mediation” under Section 6.
“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. 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,”
he said.
Section 28 outlines the grounds for challenging mediated settlements, including fraud, corruption, impersonation, and cases deemed unsuitable for mediation. Justice Kant’s concern is that the clause’s broad wording could inadvertently drag disputes back to full court trials, negating the efficiency that mediation seeks to achieve.
Justice Kant also stressed the pivotal role of government agencies in adopting mediation, citing Section 49, which mandates prior written consent from a competent authority before signing settlement agreements in disputes involving the State.
“It is worth recalling that the National Litigation Policy of 2008 also expressly emphasized the resolution of government disputes through mediation. If that policy is meaningfully implemented, it will go a long way. Read together with the legislative intent behind Section 49, such steps could mark a welcome move to promote mediation,”
he said.
Highlighting the human element, Justice Kant underscored that the success of mediation hinges on trust:
“Let us have evidence-based, confidential confidence-building among our mediators. We must also build systematic public trust through documented campaigns. That is very important for the success of mediation. For this purpose, we also need to strengthen the credibility of our institutions, which can be evaluated on a performance basis. Accreditation and institutional assessment are equally important.”
He also advocated for making mediation accessible in vernacular languages so justice can be truly inclusive, citing Arunachal Pradesh’s mobile mediation camps in Tawang, Dirang, and Bomdila as examples where local dialects and community-focused timings improved outreach.
Justice Kant concluded by highlighting the need for India to adopt international best practices to become a mediation-friendly jurisdiction:
“Once we achieve that, we can also provide an international platform. For that purpose, we must adopt the best practices from across the globe, learn from what is happening around the world in the field of mediation, and identify ourselves as stakeholders on the global map. That will be critical for the success of mediation and its institutions.”
Manipur High Court Chief Justice M Sundar emphasized the immediate need to notify Sections 27, 28, 49, 50, and 58–65 of the Act, which are crucial for the effective functioning of mediation involving the State.
“Section 49 talks about prior consent by competent authority. So that section needs to be notified as soon as possible. Sections 27 and 28 constitute the soul of the statute. Section 28 gives it the status of a civil court decree. Sections 27 and 28 also needs to be notified. Sections 58 to 65 also have to kick in,”
he said.
Meanwhile, Justice Sachin Datta of the Delhi High Court highlighted mediation’s growing credibility as an alternative dispute resolution mechanism.
“Mediation is no longer the ‘poor cousin’ of arbitration or litigation… The success rate was more than 50 percent and at 34 percent at pre-litigation stage. As far as Delhi is concerned, the record is very satisfactory. Lawyer mediators have been the unsung heroes and heroines in this.”