Senior Advocate Mukul Rohatgi on Saturday observed that the Indian legal system has increasingly begun to treat litigation like a war, with lawyers often unwilling to concede even an inch.

He further emphasised the need to strengthen mediation as a meaningful alternative for resolving legal disputes.

Rohatgi was speaking at the first national conference organised by the Supreme Court Bar Association (SCBA) on the theme “Reimagining Judicial Governance: Strengthening Institutions for Democratic Justice.”

The first panel discussion at the event focused on the topic of “Making Justice Real: The Transformative Role of Mediation.”

Beginning the discussion, Rohatgi said the conference setting itself reflected the spirit of mediation unlike the adversarial atmosphere of a courtroom.

“It is a great honour to be here and to look at all our friends from the Supreme Court in a very different environment. This is actually an environment which would be akin to mediation, not an environment of a war or fighting in court with lawyers on both sides without giving an inch,” he said.

Reflecting on the culture of litigation, Rohatgi said lawyers themselves must acknowledge their role in fostering an overly adversarial approach.

“What have we grown up with? Lawyers doing litigation, taking it like a war, not an inch to be given, not an inch of suggestions, no attempt to try and settle. This is what we have become. And I must say, the lawyers’ body must take a fair share of this blame,” remarked Rohatgi.

Drawing on historical examples, Rohatgi pointed out that leaders like Mahatma Gandhi and Abraham Lincoln often prioritised settlement over prolonged litigation.

He opined that this approach stands in contrast to the current legal environment, where litigants and lawyers alike tend to pursue every possible stage of litigation.

“Today, we have a system where the litigant and the lawyer don't trust anybody. So first court, appellate court, High Court, Supreme Court, review, curative, all this will go on and the war is endless,” he said.

Rohatgi pointed out that by the time litigants succeed after years of litigation, the result often has little practical value.

“If you had to get one rupee in a settlement and you get one rupee after fifteen years, the actual value of that one rupee is nothing. But that’s how the system has become,” he observed.

He also pointed out that mediation today often functions merely as a temporary pause in litigation rather than a genuine path to resolution.

“The court sends it to mediation. The mediator tries it, but the positions are so hardened. We say, we’ll see in mediation what happens. It doesn’t happen. We come back to court and the same battle continues,” he said.

Such mediation efforts, he added, sometimes resemble a ceasefire rather than a settlement process.

“If we have something like this, where parties are driven to an expert trusted by the court and lawyers and whose decision is final, it may avoid prolonged arbitration and litigation,” he suggested.

Rohatgi concluded by saying that revisiting older community-based dispute resolution traditions, such as the panchas system described in stories like "Panch Parmeshwar" by Premchand, could inspire innovations in modern dispute resolution.

“Maybe if we resolve our outlooks and come back to the old ways of panchas, this could be an innovation,” he said.

Supreme Court Justices Vikram Nath and Sandeep Mehta and Senior Advocate Sriram Panchu were also part of the panel.

Senior Advocate Panchu observed that it will take strategic thought, focused planning, and concerted action to get rid of perennial case backlogs through the use of mediation.

He added that one of the foremost priorities to achieve this would be to pay mediators better, so that it is a viable and sustainable career.

"Number two, the government should realize that the cost of resolving a dispute in mediation is a fraction of the cost of litigating it. So it makes economically good sense to fund mediation," he added.

He went on to observe that funding for mediation could even come from those who find success in using this mechanism to resolve their disputes.

"In cases where the stakes are large and the mediation is successful, all that the judge has to do is to ask the parties to make a donation or payment to the mediation center. Some of these cases run into hundreds of crores. A party will be more than willing to pay," he pointed out.

He also commented on the need to use mediation to settle disputes beyond just family quarrels.

"Send mediators good cases, not just routine transfer and matrimonial cases. Send them cases that matter, civil, commercial, property, personal, cases with complexity, cases with challenge. Send our mediators those cases."

He opined that mediation should serve as an important and recurring part at every stage of the dispute resolution process.

"Apply the mediation filter at every stage. Each case has its own karma. The time for resolution will come. We only have to keep trying. For the judge the backlog is a burden. For the mediator it is a treasure trove. All we have to do is to evolve a mechanism to dip into this trove, select the cases appropriate for mediation, get them referred and save the parties years of waiting time," he explained.

He called for recognising the potential of mediation beyond its occasional invocation by courts.

"Court annexed mediation is not the mainstay. It is a great feeder, and it is a great backup. But (if) we want mediation to achieve its full potential, we must focus on professional, career-oriented mediation," he said.

He added that mediation should be incorporated in law schools and young lawyers interested in becoming mediators should be mentored.

"Open the court annex system to fresh entrants to the bar. They can be observers, they can be co-mediators, they can mediate small claims and grow. They will grow to embrace it. These are our future, but we need to permit entry early. If you tell them to wait for 10 years to join the mediation system, they will go elsewhere," he suggested.

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