Government officers the biggest stumbling block to mediation: Supreme Court Justice Sandeep Mehta

Supreme Court Justice Sandeep Mehta on Saturday lamented that the government's representatives often pose the biggest obstacle to settling disputes through mediation.

Justice Mehta was speaking at the Supreme Court Bar Association's (SCBA) first national conference on the theme “Reimagining judicial governance: strengthening institutions for democratic justice."

In his address, Justice Mehta noted that the chances of a successful mediation would increase manifold if lawyers give litigants an honest picture of a dispute and the ways it which may be settled. However, government litigants themselves seldom respond positively during mediation, he noted.

"If a true picture is provided to litigants by lawyers at the first stage, the chances of mediation succeeding would increase manifold. But the most stumbling roadblock is the government. The experience in the national Lok Adalats, where we hold pre-litigation mediation sessions, is sad to say the least. There is hardly a single department of this government which comes forward with a positive response," Justice Mehta said.

The judge added that a large number of disputes could be resolved by mediation if government officers took a more practical approach.

But many a time, they are apprehensive about facing flak later for compromising cases.

"The officers, they shirk or they are rather afraid to give any kind of commitment lest they face the flak for compromising at a later stage. If this mindset were to change, I am sure that a large number of cases, cases of involving petty disputes, say pension matters, medical reimbursement, if a more pragmatic approach was to be taken by the government, a large number of cases would be resolved by mediation," he observed.

Another speaker at the event, Supreme Court Justice Vikram Nath, spoke about how mediation can offer a crucial counterbalance as the judicial system moves towards an artificial intelligence (AI) driven transformation.

The Supreme Court judge opined that mediation may be the answer to the concerns of maintaining a human element in the face of increasingly technology driven adjudication.

"The justice system stands on the threshold of another transformation with artificial intelligence beginning to influence research, drafting and even elements of decision-making. While these developments hold considerable promise in terms of efficiency, they also raise an important question about what must remain distinctly human within the administration of justice. Mediation answers that question with clarity. It is a process grounded in listening, perception and the understanding of human behavior," Justice Nath said.

He opined that mediation will even assume more significance in the near future as it provides a space in the justice delivery system where emotion and human experience are central to dispute resolution.

"In that sense, mediation does not merely coexist with technological advancement, it serves as a necessary counterbalance, ensuring that in our pursuit of efficiency, we do not lose sight of the human dimension that gives justice its legitimacy," he added.

Justice Nath also addressed certain misconceptions about mediation, particularly the notion that it is a process of compromise that leaves parties mildly dissatisfied.

"Mediation seeks equilibrium. And equilibrium is not compromise. Compromise means both sides lose something. Equilibrium means both sides find something, a restored balance and a rebuilt relationship. In a court of law, the question that everybody is concerned with is who is right. Mediation asks something far harder- how do we live together after this", he said.

Justice Nath went on to point out that mediation has been the preferred mode of dispute resolution historically across civilisations.

"Long before there were courts, every civilization developed its own version of sitting people down and making them have a dialogue. Our Panchayat system did this for centuries.The Confucian philosophy in ancient China went on to the extent to say that a magistrate who sent a dispute to court had already failed. In Arab cultures, the Sulha tradition brought feuding families to the table not to determine guilt but to restore coexistence," the judge explained.

Mediation also offers a practical way to address mounting case pendency, he added.

"When deployed thoughtfully, mediation does not compete with adjudication, it complements it, enabling the justice system to allocate its resources more rationally and to deliver outcomes that are both timely and effective," Justice Nath said.

Justice Nath further spoke about some shortfalls of mediation such as parties adopting dilatory tactics. However, better training for meditators, more rigorous case screening, institutional support from courts and statutory support, can help to address this.

"For the first time, we now have a dedicated statute for mediation, the Mediation Act 2023, which holds considerable promise," he added.

The judge went on to call for recognition of mediators across all jurisdictions once they have been recognised by an institution.

While courts will always be necessary, mediation must also exist to complement the process, he added.

"There are disputes that belong in courtrooms and where the law needs enforcement. That role is an indispensable one. But the rule of law also demands that justice actually reach people, that it heal and not merely decide, and that it restore and not merely punish ... Mediation is not an alternative to justice. It may be justice in its most complete, its most honest, and its most enduring form," Justice Nath said.

Senior Advocates Mukul Rohatgi and Sriram Panchu also spoke as part of the panel discussion which centred on the theme, “Making Justice Real: The Transformative Role of Mediation.”

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