Pre-litigation mediation has had limited success: Senior Advocate Prashanto Chandra Sen at LIDW

Pre-litigation mediation in India has had limited success so far, Senior Advocate Prashanto Chandra Sen said during a panel discussion on whether mediation and neutral evaluation can offer faster and cheaper alternatives to arbitration and litigation.

Pre-litigation mediation was made mandatory under the Commercial Courts Act, 2015. However, the law also provides for the mediation to be waived in case urgent reliefs are sought for. Sen said,

“I was quite hopeful and continuing to be hopeful about mediation...as far as pre-litigation mediation is concerned, where parties are by law required to refer their disputes to mediation unless there’s an urgent relief required, [it has] not been very successful.”

Sen was speaking at a June 4 session of the London International Disputes Week (LIDW) 2026 titled Arbitration/Litigation Fatigue? Is Mediation or neutral evaluation faster, cheaper and better? Reflections from the UK and India.

The panel featured barrister at Quadrant Chambers Robert-Jan Temmink KC, Keidan Harrison Partner Marc Keidan and JSA Partner Sidharth Sethi. Caroline Pounds KC moderated the session.

Sen pointed out that broader statistics may not fully reflect the future possibilities of mediation in India, particularly in high-value commercial disputes. He said that some important commercial disputes - including in sectors such as oil and natural gas - had seen better outcomes through conciliation and mediation.

Indian business culture has an intrinsic tendency to settle disputes and bring them to an end quickly, he highlighted. Even highly litigious clients, he said, often want disputes to be resolved as soon as possible.

Sen added that mediation in India is closely linked to the need to reduce court backlog. He referred to Section 89 of the Code of Civil Procedure, the Supreme Court’s judgment in Afcons and Section 12A of the Commercial Courts Act as milestones in the development of mediation in India.

According to Sen, the Indian court system initially tried to keep mediation within close judicial control. However, the trend has gradually moved towards giving greater space to institutions and party autonomy.

He said that judges in India, given the high volume of cases they handle, often develop an instinct about whether a matter can be pushed towards settlement. If such matters are referred to trained mediators at the right stage, mediation could become more effective, he said.

Temmink KC, speaking from the UK perspective, said,

“Arbitration was designed as a faster and cheaper alternative to litigation. But in my view, it’s largely ceased to be either.”

He said that complex arbitrations now often take between 3-5 years and involve costs comparable to High Court litigation. He added that arbitration now often involves extensive pleadings, document production and multiple interlocutory applications, but without the same binding procedural discipline.

Keidan said that he had initially been sceptical of mediation, but became a strong supporter after seeing its practical benefits in commercial disputes. He argued that mediation can give clients a quicker and cheaper way of resolving disputes and can sometimes give them the satisfaction of making their points directly to the other side.

Mediation gained traction in the UK because of both incentives and penalties, he pointed out.

He said that Indian lawyers he had spoken to remained sceptical about mediation, partly because of a litigation-first mindset. However, he added that India appeared to be moving towards a more pro-mediation culture.

Sethi said that mediation is deeply rooted in Indian tradition, including the Panchayat system and community-led dispute resolution.

While commercial dispute resolution in India is presently dominated by arbitration, especially in marquee disputes, businesses are increasingly looking beyond legal victory and towards speed, lower costs, confidentiality and preservation of business relationships, he said.

“The real question in India today is not whether we should go for arbitration or mediation. The question is, which method is best suited to resolve the dispute.”