You do not have to want to become a mediator for it to change how you work.
When lawyers ask me about mediation, the first thing they usually want to know is what the career prospects are. It is a fair question, but the wrong one to begin with. It treats mediation as a separate profession you either join or you do not. For a few people it is that. For most of us it is something more ordinary and more useful: a set of skills that changes how you handle the work you already do, whether in a trial court, an arbitration, a boardroom or a client's front room.
Since 2023 there has been a further reason to take it seriously, and this one has less to do with skills than with the law itself.
What the statute did
India now has a dedicated law for mediation. The Mediation Act, 2023 changed something the bar has not, I think, fully taken in. Under Section 27, a mediated settlement agreement is final and binding, and it is enforced under the Code of Civil Procedure in the same way as a decree of a court. Section 28 allows such an agreement to be challenged only on four grounds — fraud, corruption, impersonation, or that the dispute was not one that could be mediated under Section 6 — and only within ninety days of receiving a copy.
Put those two provisions together and the effect is considerable: an agreement reached across a table in a few weeks now carries close to the force of a decree, and is harder to disturb than many decrees on appeal.
There is also the question of when mediation is required. Section 5 provides for pre-litigation mediation in civil and commercial disputes, and Section 12A of the Commercial Courts Act, 2015 was held to be mandatory by the Supreme Court in Patil Automation Pvt Ltd v Rakheja Engineers Pvt Ltd, 2022 LiveLaw (SC) 678. Except where a suit seeks urgent interim relief, a commercial suit filed without first attempting pre-institution mediation can be rejected under Order VII Rule 11, and the Court said this may be done even on its own motion. The requirement applies to suits filed on or after 20 August 2022.
For a whole category of matters, mediation is no longer optional, and its result is treated by the law as close to a decree. A lawyer who does not understand it is missing part of the picture.
The skills are not soft
Law students are trained mainly to argue. A dispute is put to them as a contest with a right answer and a wrong one, and the ability being tested is the ability to win. In practice most disputes are not shaped like that, and the instinct to win does not, on its own, resolve them.
What mediation asks of you is less dramatic. Listen for what a person actually means, not only for the words used. Ask questions that open a conversation rather than close it. Work out what the other side needs, which is often not what it is demanding. None of this is soft, and none of it is useful only in mediation. It helps you tell a case worth filing from one that is not, and it works in a courtroom as much as anywhere else.
A question that changed a case
Some years ago a client came to me angry. He ran a small manufacturing business, and a competitor had brought out a brand close enough to his to confuse customers. He wanted an injunction, and he wanted it within the week.
The straightforward thing would have been to do as he asked. The plaint more or less writes itself, and the two sides settle in for a few years of litigation.
Instead I asked him to set the injunction aside for a moment and tell me what was really worrying him. His answer was not the one he had walked in with. He was not trying to finish off the competitor. He was worried about his name. He had spent twenty years building it and could not stand the thought of it being confused with someone else's.
That was a different problem, and it had a different solution. The matter was settled in a few weeks, on terms a court could not have ordered and both sides could accept. Under the present law that settlement would be enforceable in much the same way as a decree. He came back to me with his next matter, not because he had won, but because he felt he had been understood.
None of this required me to be a mediator. It required me to spend ten more minutes asking questions before I reached for a draft.
A hostel room
The clearest account of mediation I have heard recently did not come from a court or a conference. It came from a law student, describing something from her own hostel.
Four students shared a room. One of them had not paid her share of the rent for three months. There was an argument, and then two days in which nobody spoke.
On the third day, instead of asking again why she had not paid, one of the others asked her what had happened. It turned out that her family was in financial difficulty and she had been too ashamed to say so. What she said afterwards stayed with me: nobody had asked her what had happened; they had only asked why she had not paid.
That is most of what mediation is. Until then, everyone had been listening in order to reply, not in order to understand. Mediation is that change, made deliberately and given enough structure that it does not depend on someone happening to ask the right question on the third day. A good many of the files that reach us are versions of that room, with a court fee paid on top.
The lawyer is not a spectator
There is a common belief at the bar that mediation is something the mediator does while the lawyer waits for it to fail. That is not how it works. In the room, the lawyer is the negotiator. You advise the client on whether and when to mediate, and decide together what to put on the table and what to keep off it. You guard against a poor settlement dressed up as a resolution, which is a real risk, and usually only the lawyer in the room sees it coming. And you draft the agreement so that it holds, because under Section 27 it will be tested as a decree is tested, and under Section 28 the client will have ninety days and four grounds and nothing more.
That is skilled work, not a lesser form of litigation. A lawyer who understands the process also reads a matter differently from the first meeting, recognising the disputes that will only worsen in court: family matters, long commercial relationships that both sides would rather keep, and cases where what the client has really lost is dignity, which no decree returns.
Two objections
Two objections come up often enough to answer directly.
The first is that suggesting mediation looks weak. It looks weak only if you assume the client came for a fight. Most come for a result, and recommending the wrong forum with confidence is not a sign of strength.
The second is rarely said aloud: a quick settlement earns less than a long case. That may be true of a single file. But the client I have described came back, and sent others, and a practice built on clients who return is not the smaller one. There is also a change we should be honest about: a client who later learns that mediation was open to them and never mentioned may read that silence not as loyalty but as a gap in their advice.
Not whether, but how
Mediation is not a step away from being a lawyer. It is a fuller way of doing the job. It does not ask you to stop fighting; it asks you to be clear about what you are fighting for, and to find that out before you file rather than three years in, when the client is worn down and the answer no longer helps.
The pendency figures will not be solved by more judges alone; the numbers are too large. But this is not really an argument about clearing dockets — it is about doing the work well. The infrastructure the Act envisages — accreditation, service providers and a supply of trained mediators — is still being built, and lawyers' own understanding of mediation is part of that infrastructure, not a by-product of it.
So the question is no longer whether mediation is worth learning. It is how each of us chooses to use it. A reasonable place to start is with ten more minutes of questions: what happened here, rather than why did you not pay.
References
1. The Mediation Act, 2023, India Code (see Sections 5, 27 and 28).
2. The Commercial Courts Act, 2015, Section 12A (Pre-Institution Mediation and Settlement).
3. Patil Automation Pvt Ltd v Rakheja Engineers Pvt Ltd, 2022 LiveLaw (SC) 678 (Supreme Court of India).
4. National Judicial Data Grid (pendency statistics).
Author is an accredited Arbitrator and Mediator, a registered Trademark Attorney practicing in Supreme Court of India. Views are personal.