Experts Call for Shift from “Litigation First” to “Mediation First” as India Builds Institutional Mediation

Experts at the India Digital ADR Summit 2026 examined how the Mediation Act, 2023 can move from statutory recognition to effective institutional practice, emphasising mediator training and accreditation, credible mediation institutions, quality standards and a corresponding change in the role of lawyers.

The discussion formed part of a panel on **“Mediation after the Mediation Act, 2023: From Statutory Framework to Institutional Practice”** at the Summit organised by the National Forensic Sciences University (NFSU), Gandhinagar, through its International Digital Dispute Resolution Centre (IDDRC).

J.P. Sengh, Senior Advocate and Senior Trainer, Mediation and Conciliation Project Committee (MCPC), Supreme Court of India, said the statutory framework was needed to address gaps that had emerged as mediation developed in India. He referred particularly to the rapid growth in the number of mediators without a fixed curriculum or uniform standards, the absence of a clear framework for mediator recognition, and uncertainty surrounding enforcement of mediated settlements. The Mediation Act, he said, could provide standards for mediator training and mediation service providers while giving mediation a clearer institutional framework.

The panel also considered how institutionalisation should affect the mediator's role. Jonathan Rodrigues, International Mediator, Managing Partner, and Co-Founder of PACT, identified confidentiality, voluntariness, neutrality, and party autonomy as fundamental principles of mediation. Since the parties retain responsibility for their decisions, he said, the mediator would ordinarily not impose or suggest a solution.

Rodrigues nevertheless identified the **mediator's proposal** as an exceptional possibility at the end of a mediation. Where extensive negotiations have narrowed the dispute to a small remaining gap, and neither party is prepared to make the final move, the parties may ask the mediator to make a proposal. He described this as a “Plan Z”—an end-stage intervention rather than the mediator's ordinary role.

The discussion also considered the potential of online mediation, particularly where relationships between parties have deteriorated to the point that immediate face-to-face interaction may be difficult. Rodrigues suggested that mediation could begin online and, as communication becomes more constructive, move to a physical joint session.

For lawyers, the panel identified a broader professional transition. Amar Bhatt, Senior Advocate and Senior Trainer, MCPC, argued for a shift in mindset from “litigation first” to “mediation first”**, or from asking “why mediation?” to asking “why not mediation?”. He emphasised that lawyers increasingly require mediation advocacy and negotiation skills alongside conventional litigation expertise.

Bhatt also distinguished the different roles lawyers may play in mediation. A lawyer may act as a coach, encouraging and preparing the client to participate effectively, or protect a vulnerable client during the process. He suggested that lawyers should avoid approaching mediation simply as adversarial representatives whose function is to argue against the other side. The discussion therefore highlighted mediation advocacy as an area deserving greater attention in legal education.

The panel also examined community mediation under Sections 43 and 44 of the Mediation Act, 2023. Manan Bhatt, Advocate and Accredited Mediator, discussed its distinctive purpose in preserving peace, harmony and relationships within communities and the particular legal position of settlements emerging from community mediation.

A recurring concern throughout the discussion was that expanding mediation must be accompanied by professional standards and quality control. Sengh identified training, accreditation, independence and impartiality as central requirements and raised the question of the appropriate balance between subject-matter expertise and mediation process expertise.

**Veena Ralli**, Advocate, Accredited Mediator and Senior Trainer, MCPC, similarly emphasised the importance of credible mediation institutions and quality control as the number of trained mediators increases. The objective, she said, should be “not more mediation” but “better mediation.” The discussion suggested that institutional growth without adequate standards risks weakening rather than strengthening confidence in the process.

The panel therefore presented implementing the Mediation Act as extending beyond creating a statutory framework. Its effectiveness will depend on developing credible institutions, competent and properly trained mediators, meaningful accreditation and quality standards, effective use of technology, and lawyers equipped to represent clients constructively in mediation**.

The discussion ultimately pointed to a larger shift in India's dispute-resolution culture: mediation is becoming not merely an alternative considered after litigation has begun, but an increasingly credible process for parties to consider earlier in a dispute.