Forcing parties into mediation is always a bad idea: Justice Anup Jairam Bhambhani

Forcing parties into mediation is always a bad idea and there is no universally right stage at which parties must attempt settlement, Delhi High Court judge Justice Anup Jairam Bhambhani said at the Commercial Mediation Conclave 2026.

Justice Bhambhani said that the appropriate time for mediation depends on the nature of the dispute and whether the parties are genuinely willing to explore settlement.

“I think what is or is not the right time to start mediation depends on the dispute. Forcing parties to mediation is always a bad idea. There are times when parties have been in litigation for very long, they have suffered the battle fatigue and all of that, the litigation fatigue and that's when it dawns on them that maybe we have been walking the wrong road.”

He added that parties may become more receptive to mediation once the strengths and weaknesses of their respective cases become clearer. In disputes involving continuing commercial relationships, such as construction contracts, parties may also have practical reasons to preserve their association.

Justice Bhambhani was speaking during a fireside chat on Mediation in Construction Disputes along with former Supreme Court judge Justice Hima Kohli. The session was moderated by Mehak Oberoi, author of Construction Mediation.

On who should act as a mediator, Justice Bhambhani described mediation as a “standalone and extremely soft and specific skill”. He said that a mediator need not necessarily be a technical expert in the subject matter but must understand the “pathology” of the dispute.

He added that technical assistance could be taken where required in specialised disputes such as patents or construction matters

Justice Bhambhani agreed that government officers were often “petrified at taking a call” and suggested that high-powered committees of senior officers could support and approve settlements, reducing the fear attached to individual decision-making.

Justice Kohli similarly stressed that being a judge and being a mediator required different approaches.

“Being a judge is one thing but being a mediator means wearing a different mantle and that mantle should not overlap with your authority as a judge.”

She recalled undergoing mediation training herself while serving as a Supreme Court judge.

Justice Kohli said officers may recognise that settlement is commercially sensible but still hesitate because of fears of audit objections, corruption allegations or career consequences.

Justice Kohli also highlighted the difficulty of settling disputes involving government bodies and public sector undertakings. She said officers may understand that a settlement makes commercial sense but remain reluctant because of fears of audit inquiries, corruption allegations or career consequences.

“They would rather say send it to the court, let the court decide.”

She said officers participating in mediation should have institutional backing and sufficient authority to take financial decisions

Former Supreme Court judge Justice Kurian Joseph made a similar point during an earlier fireside chat titled Commercial Mediation – Economics & Emotions, moderated by Jonathan Rodrigues, Mediator and Director, GAADR.

“Merely being a judge doesn't qualify someone to be a mediator,” Justice Joseph said.

He added that ostensibly commercial disputes can have emotional conflicts beneath the contractual or financial issues.

“Don't underestimate matrimonial disputes; 70% of commercial disputes have an underlying matrimonial dispute.”

Senior Advocate Sajan Poovayya, meanwhile, spoke during a panel titled What Actually Happens in the Room: Real-World Mediation Experiences from Indian Boardrooms and Courtrooms.

The panel comprised Poovayya; Beena Vaheed, Executive Director, Bank of Baroda; Basudeb Biswas, General Counsel, TARC; and Ankit Parhar, Partner, Poovayya & Co, who anchored the discussion.

Poovayya argued that technically complex commercial disputes require mediators who understand their business context.

He questioned why parties to a power-sector dispute involving tariff renegotiation, imported coal and technical concepts would trust a generalist retired judge unfamiliar with energy law or tariff determination.

He said statutory mediation institutions should build a pool of specialist commercial mediators rather than rely predominantly on generalists experienced in matrimonial or family disputes.