Reimagining India's Dispute Resolution Framework

India's colonial past bestowed upon it a justice delivery system that operates within an adversarial paradigm inherited from the Common Law traditions of Britain. This model of dispute resolution operates on binaries of legally defined rights and wrongs and works in a fault-finding framework that does not factor in the cultural diversity and the history of dialogic systems prevalent in the pre-colonial era. The present system is based on a binary system of adversarial determination rather than a flexible, interest-based resolution that would better suit the cultural diversity and multi-faith fabric of India. Despite legislative and judicial efforts to integrate more appropriate dispute resolution mechanisms into the justice architecture, India still lacks a professionalised, institutionalised dispute resolution ecosystem that is comparable to globally prevalent models. This article examines the conceptual distinction between justice delivery and dispute resolution, analyses systemic challenges, reviews systems adopted in other jurisdictions that have worked successfully and proposes a policy-driven blueprint for an integrated institutional Med-Arb and Arb-Med-Arb framework as a cornerstone of India's future dispute resolution ecosystem.

Since the colonisation of India by the British Empire, the Common Law model^[1] has dominated its justice delivery system, drawing almost every aspect of human interaction into a formal legal framework and placing primary reliance on courts for the resolution of disputes based on laws and precedents. This has created a distinctive challenge in a country like India, marked by a vast population, immense cultural diversity, deeply rooted customs and traditions, multiple languages, religions, belief systems, and forms of wisdom that are grounded more in lived experience than in formal literacy.

The social contract embodied in the Constitution guarantees equality before the law, equal protection of laws, and access to justice for all. However, the justice delivery system implemented during the colonial era and affirmed under the constitution has come under immense strain in attempting to fulfil these promises. The scale of this stress is reflected in staggering judicial pendency. India has a backlog of more than 48 million cases^[2], and the economic cost of such pendency is estimated at 1.5% of the GDP^[3]. It is not as if the state and the judiciary are not doing anything to resolve this issue that is affecting the credibility of the justice delivery system itself. Tribunals and special courts have been established for dealing with different verticals – we have consumer protection courts, company law tribunals, the administrative tribunals, debt recovery tribunals, the accident claim tribunals, commercial courts and so on. But these have not solved the problem! Surprisingly, all the special courts and tribunals are equally crowded and, at the same time, have not helped to declog the courts!

The fact of the matter is that all the steps that have been taken to mitigate the problem of backlog have the same underpinnings, viz. the adjudicatory process, under different labels. The adjudicatory process, in its traditional framework, rests on binaries: victim versus oppressor, right versus wrong, legal versus illegal, and it works well where justice needs to be delivered. However, when these binaries are imported into the context of dispute resolution, the fault-finding, truth-searching, adversarial processes of adjudication do little to resolve disputes. Instead, they often entrench and escalate them and, more often than not, lead to miscarriage of justice. For far too long, adjudication has been the sole tool at our disposal, fostering an adversarial psyche that conditions people to fight rather than to resolve. This fits into the cognitive bias explained by Abraham Maslow who said, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail^[4].”

As eloquently explained by Srđan Šimac, a Croatian judge, arbitrator and mediator, “Litigation produces one form of justice - the justice of a judicial decision. It is necessary, legitimate, and in many situations indispensable. But it comes at a cost:

• the reduction of reality and truth,
• the loss of party voice,
• and the transformation of complex human conflicts into legal questions with one winner and one loser, and too often, two losers^[5].”

The legacy of the colonial system has led to the belief that justice can only be delivered by the courts, little realising that what the courts deliver is justice according to the law, which in many cases may not translate to real justice – bringing to fore Amartya Sen's argument that Niti (institutional justice) is not necessarily Nyaya (realised justice)^[6]. This is because, (a) in a majority of cases, people are not happy with the outcome of the adjudicatory process; (b) in most cases, the outcome is so delayed that the very purpose for which the proceedings were initiated stands defeated; (c) in some cases, the original litigants may not be alive to enjoy the success; and (d) in almost all the cases, the fruits of the outcome may never be realised. There must be more to justice delivery than simply the finality or enforceability that the courts can offer. This is, by no means, a denouement of the court system but only an effort to point out that the hammer of law cannot be used to solve every problem. This is where the need for differentiating between those cases that need the intervention of the courts for delivering justice and those that need flexible, efficacious and credible dispute resolution mechanisms arises.

1. Justice Delivery from Dispute Resolution: A Conceptual Distinction:

To understand the conceptual difference between dispute resolution and justice delivery, the following table may be helpful:

Cases where dispute resolution works better than justice delivery are (i) commercial contracts, (ii) family and matrimonial disputes, (iii) workplace and organisational conflicts, (iv) community and neighbourhood disputes and (v) international trade or investment disputes.

Cases where the strong arm of the courts is required are (i) criminal offences of grave nature that affect not just the victim but the whole society (here too, restorative justice is an evolving concept), (ii) constitutional and public law matters, cases involving public policy or statutory rights, (iii) cases where there is no consent or power imbalance and (iv) cases where interpretation of statutes and setting of judicial precedents becomes necessary.

An analysis of the above would show that the test applicable would be to see whether the case involves only rights in personem that can be negotiated and resolved, or rights in rem that would have to be decided by the courts. However, even in the case of rights in rem, collateral issues arising out of an established right in rem can be negotiated and settled. To give a few examples:

• Property and ownership (title) is a right in rem established either through a registered instrument of title or a court decree. But issues may arise subsequent to the establishment of such a right, such as disputes relating to possession, use or division which are open to negotiated settlement.
• The legal status of heirs is a right in rem, but settlement of shares and division of assets can be negotiated and settled.
• IP rights are rights in rem once registered, but licensing, royalty disputes and coexistence arrangements are amenable to a negotiated settlement.
• Tenancy rights may be statutory in nature, but rental arrears, eviction settlements or compensation can be negotiated and settled.
• Marital status is a right in rem, but issues of alimony, custody of children, property division, maintenance and so on can be negotiated and settled.

1. Developments in India's Mediation Landscape:

Recognising the differences highlighted above, section 89 of the Civil Procedure Code was introduced in 2002 outlining a few alternate methods of dispute resolution so that the courts do not have to adjudicate every dispute that comes before them but offer the litigants an opportunity to resolve their disputes in a more efficient and and effective manner. Section 89 had its own challenges that were resolved by the Supreme Court in the landmark case of M/S. Afcons Infra. Ltd. & Anr vs M/S Cherian Varkey Constn Co.P.Ltd.^[7] The past decade has seen some rapid developments taking place that highlight the significant focus on mediation as a viable tool for dispute resolution.

• The Mediation and Conciliation Project Committee set up by the Supreme Court of India in 2005 has established mediation centres in almost every state, district and taluk across the country in pursuance of the mandate of section 89 of the Code of Civil Procedure.
• Section 12A was introduced into the Commercial Courts Act in 2016 mandating pre-litigation mediation.
• The Chief Justice of India launched the “Mediation for the Nation” initiative and reportedly about one lakh cases (mostly matrimonial) were settled.^[8]
• The Parliament has enacted the Mediation Act, 2023, though the Act is yet to be notified and the Mediation Council of India yet to be formed.
• India's top lawyer, the Attorney General of India, launched the Mediation Association of India^[9] at a grand National Conference on Mediation held in New Delhi and graced by none other than the President of India.
• Recently, Chief Justice of India, Justice Suryakant said that “mediation is not just an alternative to adjudication but is a constitutional value in itself”.^[10]

While Pre-Institution Mediation under Section 12A of the Commercial Courts Act was introduced as step towards consensual resolution of commercial disputes, data shows that the same remains untapped. The figures given in the report do not undermine the value of mediation itself but rather highlight the need for course correction in its design and implementation. With the right institutional and policy interventions, Pre-Institution Mediation has the potential to evolve from a procedural prerequisite into a credible, outcome-oriented gateway for resolving commercial disputes efficiently and collaboratively.^[11]

Thus, the question that begs an answer is:

Do we have a cogent national policy to create a robust and efficient Dispute Resolution Ecosystem integrating hybrid ADR processes like Med-Arb and Arb-Med-Arb in a credible and efficient institutional framework?

1. Persistent Structural Challenges:
2. Absence of Professional Full-Time Mediators and Arbitrators:

Despite the establishment of the first court-annexed mediation centre at the Madras High Court in 2005, mediation in India continues—even after 21 years—to be viewed as a “Pro Bono, Part-Time” (PBPT) activity for lawyers rather than a full-time professional career. In many other jurisdictions, mediation has evolved into a dedicated profession, with mediators conducting full-day sessions as a matter of routine.

This practice, however, has not taken root in India, largely because India does not have full-time mediators. Most mediators are practising lawyers attached to court-annexed mediation centres, conducting mediations only after regular court hours. During the day, they operate in a highly adversarial environment, vigorously advocating for their clients; by evening, they are expected to switch hats and play the role of a collaborative, facilitative mediator. This abrupt shift between two fundamentally different roles is a challenge that is difficult to reconcile (for many).

The challenge of lack of full-time practitioners is not unique to mediation. Even though an Arbitration Bar has been established, India still lacks full-time arbitrators or practitioners who focus exclusively on arbitration. Consequently, many arbitration proceedings are scheduled on weekends or in the evenings after court hours, reflecting the broader structural gap in nurturing full-time dispute-resolution professionals.

1. Limited Mediation Advocacy Skills:

The challenge is not limited to the shortage of trained, professional neutrals; it also extends to the lack of lawyers equipped with collaborative dispute-resolution skills. Although ADR features in law school curricula, it is taught largely as theory rather than as practical training in problem-solving, negotiation, and cooperation. As a result, lawyers—deeply entrenched in the adversarial mindset through practice—often find themselves unprepared when guiding clients through mediation. It must be recognised that mediation advocacy is a core competency for a modern lawyer. Expecting a lawyer to function today without this skill is like asking a mechanic to repair a car using only one tool: Maslow's hammer.

1. Public Perception of Mediation as Low-Value:

Another significant challenge is the way mediation is perceived in India. Mediation is still viewed as suitable primarily for matrimonial, family, community, and small-claims disputes, rather than for complex, high-value commercial matters. It is often treated merely as an extension of the court system, aimed at easing the backlog of family and small-claim cases.

To be clear, there is nothing wrong with using mediation to resolve family and matrimonial disputes. These cases constitute a substantial portion of the court docket and are a major source of distress and disharmony in society. Pro bono mediation—like free legal aid—is essential for individuals who cannot afford professional services.

However, the continued reinforcement of the “Pro Bono, Part-Time” (PBPT) image of mediation diminishes its value, reducing it to a lesser form of justice delivery used primarily to reduce court backlog, rather than as the sophisticated transformative tool that it is within the country's dispute-resolution ecosystem. This stands in sharp contrast to global practice, where mediation is widely recognised as an effective mechanism for resolving high-stake commercial disputes, offering quick, collaborative solutions that generate significant commercial and economic value for the parties involved.

1. Lessons from International Models:

A comparative assessment of international mediation frameworks offers valuable insight into the path India could follow. Jurisdictions such as England and Wales and Hong Kong - fellow common law-based systems - demonstrate that voluntary or court-encouraged mediation—while highly successful among commercially sophisticated parties—could fail to operate as a systemic filter for court congestion. In contrast, Italy and Greece illustrate that mandatory initial mediation, when designed with opt-out safeguards and supported by institutional capacity, can normalise mediation practice and significantly reduce civil backlog. Singapore represents the most evolved model, where mediation functions not as an “alternative” but as core justice infrastructure integrated into judicial case management, delivered by professional private institutions, and reinforced by strong enforceability mechanisms, including international recognition. These international experiences suggest that India's challenge is not the statutory mandate of Pre-Institution Mediation itself, but the absence of a robust institutional ecosystem, professional full-time mediators, and integration with structured hybrid processes. Aligning India's mediation framework with global best practices therefore requires moving beyond procedural compulsions.

1. The Case for Hybrid Processes: Med-Arb and Arb-Med-Arb:

From a procedural standpoint, the principal virtue of Med-Arb and Arb–Med-Arb lies in their capacity to compress timelines without diluting adjudicatory rigour. By constituting the arbitral tribunal at the threshold stage and suspending proceedings for a defined mediation window, the process avoids the inefficiencies faced by wholly sequential models. The “tribunal-on-standby” architecture—now embedded in institutional protocols such as the SIAC–SIMC Arb–Med-Arb framework ensures that failed mediation does not translate into procedural restart, duplication of pleadings, or renewed jurisdictional skirmishes^[12]. The SIAC-SIMC Arb-Med-Arb Protocol serves as a leading global template for such frameworks.

Equally significant is the ability of the mediation phase to narrow the scope of disputes by resolving peripheral or commercial issues, thereby allowing arbitration to focus sharply on the core, irreconcilable questions requiring adjudication. This issue-filtration function enhances procedural economy and reduces evidentiary and hearing burdens. Further, these hybrid frameworks retain flexibility even after arbitration has commenced, permitting parties to revert to mediation for discrete issues that crystallise during the arbitral process. Time-bound mediation windows, typically capped at thirty to sixty days, further ensure that mediation functions as a focused opportunity for settlement rather than an avenue for strategic delay.

1. Towards a Robust Indian Dispute Resolution Ecosystem: Policy Proposals:

What India needs today are the following:

a) Professionalising mediation and arbitration as independent, full-time careers by ensuring that mediators and arbitrators hold appropriate qualifications and meet recognised accreditation criteria, including the specialised knowledge and expertise to deal with disputes under different sectors and domains.

b) Building a strong, credible and efficient institutional framework devoted exclusively to dispute resolution—distinct from the traditional justice-delivery system—so that parties can rely on a trusted, high-quality institutionalised process.

c) Developing a skilled cadre of mediation and arbitration advocates who are trained to guide clients through these processes effectively, strategically and with a clear focus on achieving timely, practical outcomes.

d) Seamlessly integrating collaborative mechanisms like mediation with adversarial processes such as arbitration, ensuring that all matters not requiring the coercive power of judicial intervention are resolved through the ADR Institutions and not clog the over-burdened court system.

e) ADR Institutions should have panels of full-time mediators and arbitrators possessing the requisite qualifications and skillsets, including sector-specific expertise.

Accordingly, to start with, all commercial or contractual disputes should be mandatorily referred to hybrid processes such as Med-Arb administered by accredited ADR institutions. While this may appear radical to those still anchored in the traditional litigation model, the reality is that our overburdened courts leave us with no other viable alternative.

To ensure that such a system is credible, efficient and transparent, the following measures would need to be implemented:

1. Policy and legislative methods:
2. The immediate notification of the Mediation Act, 1923.
3. Constitution and operationalisation of both, the Mediation Council of India and the Arbitration Council of India manned by professionals having experience in the field including implementing all the amendments made to the Arbitration Act in 2019.
4. Framing of clear-cut rules and guidelines on training standards, accreditation criteria, ethical standards and disciplinary mechanisms for both arbitrators and mediators.
5. Creation of a national registry of ADR institutions and practitioners.
6. Institutional Development:
7. Building of regional and national State-funded but autonomous ADR institutions supervised (not controlled) by retired judges of the Supreme Court and High Courts and managed by qualified professionals.

1. Smaller, private ADR institutions should be encouraged as Mediation Service Providers, as contemplated under the Mediation Act, 2023, subject to strict adherence to prescribed standards of professional conduct and accountability.
2. All commercial and contractual disputes should mandatorily go for resolution to the ADR institutions, and the Med-Arb and Arb-Med-Arb hybrid processes should be made mandatory for all commercial and contractual disputes as well as those family disputes pertaining to property division or family businesses, regardless of the existence of a written agreement or not. Any statutory enactments or amendments that may be required to make this possible, should be made.
3. Appeals against awards passed under the Med-Arb or Arb-Med-Arb processes should be allowed only in exceptional cases of miscarriage of justice before appellate tribunals constituted under the institutional frameworks.
4. Special statutory provisions should be put in place to provide interim reliefs where required without interrupting the mediation-arbitration continuum.
5. Develop the Court-annexed mediation centres for providing free mediation services in deserving cases, particularly in family and community cases. However, the mediators who dedicate time and effort, should be paid a decent honorarium for their efforts or implement schemes that would give credits for pro bono service. Encourage retired judges and senior advocates to offer pro bono services as part of their social responsibility.
6. Capacity Building and Professionalisation:
7. ADR institutions should be mandated to empanel only trained mediators and arbitrators and establish sector-specialist mediator and arbitrator panels.
8. Develop tiered accreditation: basic, advanced and specialised mediators/arbitrators.
9. Mandate periodic CPD (Continuous Professional Development) programs to be conducted by the ADR institutions for the empaneled mediators and arbitrators.
10. Frame rules to ensure that mediators and arbitrators undergo mandatory training and periodic CPD programs as condition precedent for continuation of accreditation and empanelment, and renewal of certification.
11. Promote advocacy in mediation and arbitration as recognised professional skills.
12. Mandate mediation and mediation advocacy training in Law School, Bar Council and Judicial Academy curricula.
13. Encourage law firms to have mediation advocacy verticals as part of their dispute resolution wings and encourage corporate in-house mediation programs.
14. Encourage the use of technology, including the use of online case-management systems to ensure efficiency and efficacy.
15. Promote institutional collaboration between Indian and foreign institutions to develop and implement international best practices for dispute resolution, including methodologies, professional and ethical standards and technology.
16. Cultural and Mindset Transformation:
17. Launch nationwide awareness campaigns in a planned and sustained manner, supported by the Judiciary, Bar Council and Ministry of Law and Justice, to encourage collaborative dispute resolution and create awareness of the advantages of institutional dispute resolution.
18. Reorient legal education to integrate soft skills like negotiation and communication, including the psychology of conflict and collaborative conflict resolution mechanisms like mediation into the LLB/LLM curricula so that future lawyers are not mere gladiators but actual problem solvers.
19. Promote restorative justice concepts to emphasise that resolution is also justice using the Niti-Nyaya framework.

India's Dispute Resolution framework stands at an inflection point. The adjudicatory, adversarial system, while indispensable for constitutional, criminal and public rights matters, has been unable to meet the full spectrum of the Dispute Resolution needs – presenting a challenge to “Ease of Dispute Resolution” thus impacting India's ranking in the “Ease of Doing Business” indices. The future lies in a hybrid, institutionalised, professionally administered ADR ecosystem that integrates the collaborative power of mediation with the binding force of arbitration. The way forward requires legislative activation, institutional redesign, professionalisation of ADR practitioners, and most important, a paradigm shift towards the culture of collaborative, consensual and interest-based dispute resolution. A collaborative national effort – drawing on global best practices – can transform India's Dispute Resolution landscape and align it with the needs of a modern, rapidly evolving economy and international trade and commerce.

End Notes & References:

1. https://www.britannica.com/topic/common-law ↑

2. https://njdg.ecourts.gov.in/njdg_v3/ ↑

3. https://www.business-standard.com/article/opinion/cost-of-pendency-of-cases-could-be-as-high-as-1-5-of-gdp-harish-narasappa-116081400774_1.html ↑

4. “The Psychology of Science – A Reconnaissance” – Abraham Maslow. ↑

5. https://www.linkedin.com/pulse/justice-puzzle-what-courts-can-cannot-deliver-sr%C4%91an-%C5%A1imac-cfvze?utm_source=share&utm_medium=member_ios&utm_campaign=share_via ↑

6. The Idea of Justice – Amartya Sen, Penguin 2010. ↑

7. https://indiankanoon.org/doc/1875345/ ↑

8. https://theprint.in/judiciary/sc-panel-nalsa-mediation-drive-1-lakh-cases-resolved-matrimonial-disputes-make-up-biggest-chunk/2769028/ ↑

9. https://maoi.org.in/ ↑

10. Mediation Not Just An Alternative To Adjudication But A Constitutional Value In Itself : Justice Surya Kant

    https://www.livelaw.in/top-stories/mediation-not-just-an-alternative-to-adjudication-but-a-constitutional-value-in-itself-justice-surya-kant-307437 ↑

11. City Civil & Sessions Court, Mumbai, Form 7- List of Cases received for Pre-Institution Mediation and Settlement during the Month : December 2025 ;

    Data of Pre-Institution Mediation, DELHI STATE LEGAL SERVICES AUTHORITY https://dslsa.org/hrf_faq/data-of-pre-institution-mediation-in-commercial-matters/ ;

    Pre-Institution Mediation in Commercial Courts, KARNATAKA STATE LEGAL SERVICES AUTHORITY, https://judiciary.karnataka.gov.in/kslsa/pdfs/PIMS_data.pdf ↑

12. Singapore International Arbitration Centre & Singapore International Mediation Centre, Arb-Med-Arb (AMA) Protocol, available at: https://siac.org.sg/arb-med-arb-ama-protocol? ↑

     Author is a lawyer currently serving as the Registrar and CEO of International Arbitration and Mediation Centre, Hyderabad (IAMCH). Views are personal.