Mediation emerging as preferred ADR mechanism since arbitration often mired in procedural hassles: CJI Surya Kant

Chief Justice of India (CJI) Surya Kant on Monday said mediation had emerged as the authentic frontier of commercial dispute resolution, as arbitration increasingly risked inheriting the very procedural burdens it was originally created to escape.

Delivering a lecture on “Mediation, Arbitration, and the Courts: Converging Trends in the Indian and English Approaches to Commercial Dispute Resolution,” Justice Kant said arbitral proceedings were generating an expanding parallel layer of litigation, often undermining the efficiency they were intended to provide.

“It is my earnest belief that as international arbitration has increasingly mirrored the very procedural complexities it was designed to escape, it is mediation that now emerges as the authentic frontier of commercial ease,” he said.

The remarks were made at an event hosted by the UK Supreme Court and Senior Advocate Gourab Banerji.

Introducing the Chief Justice, UK Supreme Court judge Lord George Leggatt highlighted the scale of work undertaken by the Indian Supreme Court.

Noting that the UK Supreme Court, with 12 justices, handles around 250 cases annually, Lord Leggatt remarked that the Supreme Court of India, with roughly three times as many judges, disposed of about 75,000 cases last year.

“How he has time for anything else, I find very hard to understand,” Lord Leggatt said, adding that Justice Kant had accepted the invitation despite having turned down numerous speaking engagements during his visit to the United Kingdom.

During his address, Justice Kant noted that challenges relating to the existence and validity of arbitration agreements, appointment of arbitrators, determination of the arbitral seat, jurisdictional disputes and challenges to awards frequently reached courts at multiple stages.

“The consequence is that disputes which were intended to be resolved with efficiency and expedition can, at times, become drawn into prolonged procedural contests,” he said.

Tracing mediation’s roots to India’s civilisational traditions, Justice Kant said the Mediation Act, 2023, should not be seen as a borrowing from Western legal systems but as a restoration of indigenous methods of dispute resolution.

“This statutory milestone is frequently mischaracterized as a mere imitation of Western corporate trends. In truth, it represents an act of jurisprudential repatriation...It is the formal legislative solemnization of a native cultural instinct, restoring its classic heritage and harmonizing ancient civilizational wisdom with the rigorous demands of global commerce,” he said.

Referring to traditional Indian institutions such as Kula (family councils), Shreni (merchant guilds) and Puga (territorial assemblies), the Chief Justice said consensual dispute resolution had long formed part of India’s social and commercial fabric.

He also recounted the ancient story of the Rohini River dispute between the Sakyas and Koliyas, saying it illustrated how Indian traditions prioritised preservation of relationships and human values over adversarial assertions of rights.

Justice Kant said the enactment of the Mediation Act marked a paradigm shift by elevating mediation into an independent pillar of commercial justice. He highlighted provisions mandating pre-litigation mediation, ensuring confidentiality of proceedings and granting mediated settlement agreements the status of enforceable civil court decrees.

The Chief Justice further stressed that commercial entities should move beyond the traditional concept of forum conveniens and adopt what he termed “process conveniens."

“The primary question for a modern corporation should no longer be where to litigate, but rather, how to resolve,” he said.

According to him, legal advisers should assess whether a dispute requires adjudication by courts, determination by an arbitral tribunal or resolution through mediation.

While praising the development of arbitration in both India and the United Kingdom, Justice Kant cautioned that arbitration was increasingly creating a parallel layer of litigation. He noted that several jurisdictions, including the UK, were grappling with similar concerns and referred to recent reforms introduced through the UK’s Arbitration Act, 2025.

The Chief Justice also called for strengthening mediation through professional accreditation standards, greater institutional support and a cultural shift within the corporate sector.

“We must actively cultivate a new paradigm within corporate governance, a mindset where opting for mediation is recognized as a hallmark of commercial sophistication, financial wisdom, and strategic maturity, rather than a confession of legal weakness,” he said.

The CJI emphasised that courts, arbitration and mediation should not be viewed as competing systems.

“Our traditional courts must continue to remain ultimate guardians of public legal standard-setting and constitutional accountability. Yet, while the court provides the architecture of certainty, mediation serves as the adaptive mechanism for private commercial harmony. The two systems do not diminish one another; they sustain each other,” he said.