Justice Anup Bhambhani on the Ineffectiveness of Forced Mediation
During the 2026 Commercial Mediation Conclave, Justice Anup Jairam Bhambhani of the Delhi High Court expressed his reservations about compelling parties to engage in mediation. According to Justice Bhambhani, there is no universally correct time to initiate mediation, as it largely depends on the nature of the dispute and the willingness of the parties to resolve their differences.
Justice Bhambhani highlighted the challenges of enforcing mediation prematurely, noting that parties often become more amenable to settlement after enduring the rigors and fatigue of lengthy litigation. He observed, “Forcing parties to mediation is always a bad idea. There are times when parties, burdened by litigation fatigue, realize they may have been on the wrong path.” He further explained that in cases involving ongoing commercial relationships, such as construction disputes, parties might have practical motivations to maintain their business ties.
The Role of Mediators and Government Involvement
In a fireside chat on mediation in construction disputes, alongside former Supreme Court Justice Hima Kohli, Justice Bhambhani discussed the unique skills required of mediators. He emphasized that mediation is a standalone skill, distinct from the technical expertise of the subject matter, although technical assistance can be beneficial in specialized disputes like patents and construction.
Justice Bhambhani also addressed the hesitancy of government officers in making settlement decisions due to fear of repercussions. He suggested the formation of high-powered committees comprising senior officers to support and validate settlements, thus alleviating individual anxiety over decision-making.
Justice Kohli concurred, underscoring the distinct roles of judges and mediators. “Being a judge is one thing, but being a mediator requires a different approach,” she stated, recalling her own mediation training during her tenure at the Supreme Court. She noted that while officers might recognize the commercial rationale for settlement, they often hesitate due to concerns about audit objections, corruption charges, or career risks.
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Commercial Mediation: Complexities and Challenges
Justice Kurian Joseph, a former Supreme Court judge, echoed the sentiment in a prior discussion on the economic and emotional facets of commercial mediation, moderated by Jonathan Rodrigues, a mediator and director at GAADR. Justice Joseph pointed out that being a judge does not inherently qualify someone as a mediator, as many commercial disputes involve underlying emotional conflicts.
Senior Advocate Sajan Poovayya contributed to a panel discussion on real-world mediation experiences, emphasizing the necessity for mediators to possess specific business insights. He questioned the efficacy of employing generalist retired judges to mediate complex technical disputes, such as those in the power sector involving tariff renegotiation and energy law. Poovayya advocated for the development of a specialized pool of commercial mediators within statutory mediation institutions.
