Overview of Pre-litigation Mediation in India
During a pivotal session at the London International Disputes Week (LIDW) 2026, Senior Advocate Prashanto Chandra Sen highlighted the limited success of pre-litigation mediation in India. This discussion centered on whether mediation and neutral evaluation could serve as more efficient and cost-effective alternatives to arbitration and litigation.
The Commercial Courts Act, 2015, mandates pre-litigation mediation; however, exceptions are made for cases requiring urgent relief. Despite this legal framework, Sen expressed that pre-litigation mediation has not achieved significant success, stating, “I was quite hopeful and continue to be hopeful about mediation…as far as pre-litigation mediation is concerned…it has not been very successful.”
Panel Insights from LIDW 2026
The panel, titled “Arbitration/Litigation Fatigue? Is Mediation or Neutral Evaluation Faster, Cheaper, and Better? Reflections from the UK and India,” also featured insights from Robert-Jan Temmink KC of Quadrant Chambers, Marc Keidan of Keidan Harrison, and Sidharth Sethi of JSA. The session was moderated by Caroline Pounds KC.
Sen noted that while general statistics may not reflect the future potential of mediation in India, high-value commercial disputes, particularly in sectors such as oil and natural gas, have seen more favorable outcomes through mediation and conciliation. He emphasized that Indian business culture inherently favors swift dispute resolution, even among clients with a propensity for litigation.
Legal Framework and Judicial Trends
The evolution of mediation in India is closely linked to efforts to alleviate court backlogs. Sen referenced pivotal legal milestones, including Section 89 of the Code of Civil Procedure, the Supreme Court’s Afcons judgment, and Section 12A of the Commercial Courts Act, as significant contributors to the development of mediation practices.
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Initially, Indian courts sought to maintain judicial control over mediation processes. However, there is a discernible shift towards granting greater autonomy to institutions and parties involved. Sen also highlighted that Indian judges, due to their extensive caseloads, often develop an instinct for identifying cases that could benefit from mediation, suggesting that timely referrals to trained mediators could enhance the effectiveness of this process.
International Perspectives on Mediation and Arbitration
From the UK perspective, Robert-Jan Temmink KC remarked, “Arbitration was designed as a faster and cheaper alternative to litigation. But in my view, it’s largely ceased to be either.” He noted the increasing complexity and duration of arbitrations, which now often span 3-5 years and incur costs comparable to High Court litigation.
Marc Keidan shared his initial skepticism about mediation, which transformed into strong advocacy following its practical benefits in commercial disputes. He argued that mediation offers a faster and more cost-effective resolution method and provides clients with the opportunity to communicate their perspectives directly to opposing parties.
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Keidan also highlighted the role of incentives and penalties in promoting mediation within the UK, while acknowledging a lingering skepticism among some Indian lawyers. However, he observed a growing pro-mediation sentiment in India.
Traditional Roots and Future of Mediation in India
Sidharth Sethi emphasized that mediation is deeply ingrained in Indian tradition, citing the Panchayat system and community-led dispute resolution as historical precedents. While arbitration currently dominates commercial dispute resolution in India, particularly in high-profile cases, businesses increasingly prioritize speed, reduced costs, confidentiality, and the preservation of business relationships.
Sethi concluded, “The real question in India today is not whether we should go for arbitration or mediation. The question is, which method is best suited to resolve the dispute.”
