Anyone with the slightest knowledge of India’s judicial system will be aware of the listless pace at which cases crawl through, but even then, the hard numbers are quite impressive. As of last July, 33.3 million cases were pending in the district and subordinate courts, and an additional 4.1 million in the high courts. The Supreme Court had more than 65,000 pending cases at the start of this year. This is, of course, not counting the hundreds of thousands of cases pending before tribunals. Apart from causing suffering to millions of ordinary individuals, the case clog can also impact growth: Experts say it is one of the biggest factors in deterring private investment in India. 

Part of the reason is the shortage of judges. An analysis by The Leaflet found that even though the official figure was less than 20 judges per million of population (compared to 107 in the U.S. and 75 in Canada), the actual number might be worse. However, the Economic Times article linked above believes that problem is solvable; adding 2,279 additional judges in lower courts and 93 in high courts would be enough to reach 100 percent clearance at current productivity levels. But another option is being weighed by the Supreme Court right now: Mandatory pre-litigation mediation.

Some weeks ago, the Youth Bar Association of India (YBAI) filed a PIL before the apex court, seeking compulsory pre-litigation mediation. According to ANI, the plea “said that mundane routine matters take up most of the court's time and thereby a policy can be created to speed up hearings.” The court has knocked it over the government, with a bench headed by Chief Justice SA Bobde telling Solicitor-General Tushar Mehta that they had heard the centre was contemplating legislation on the same. While that plays out, we wanted to look more closely at where things stand today, and how lawyers feel about it.

Raj R Panchmatia, a partner at Khaitan & Co, says that it would be a “welcome move” to bring in a law for mandatory pre-litigation mediation. He points out that India in August 2018 passed the Commercial Courts Amendment Act, featuring Section 12A, which provides for mandatory pre-institution mediation if a suit does not contemplate any urgent relief. “The idea behind this provision was to push the litigating parties to at least attempt to resolve their differences out of court, says Panchmatia. “In effect, this was a major step that the Indian dispute resolution system took towards mediation.”

But there is a loophole. “Sub-section (1) of 12A provides a route to circumvent the mandatory reference to mediation. If the plaintiff, along with his plaint, files an application for urgent interim relief(s), the courts can waive the mandatory reference to mediation in that case and institute the suit,” says Panchmatia. Other lawyers have similar experiences. “In commercial suits, majority of litigants cite some sort of urgency in order to bypass the process of pre-litigation mediation, whether there is real urgency or not,” say Narendra Dingankar, partner, and Rushad Irani, senior associate at Pioneer Legal. And for disputes that are not commercial in nature, says Panchmatia there is no regime within the Indian legal framework that compels parties to try mediation in the pre-litigation phase.

The Commercial Courts Amendment Act is not the only piece of legislation that advocates mediation though, point out Dingankar and Irani. “Many other laws, including the Code of Civil Procedure, 1908, Industrial Disputes Act, 1947, Special Marriages Act, 1954 etc., also contain provisions for mediation,” they say. “The centre will have to see whether the inclusion of such legal provisions has in fact been successful before it can decide to introduce a law on mandatory pre-litigation mediation for all disputes.”

The natural inclination for people is to avoid disputes, and therefore compulsory pre-litigation mediation might be a good thing on paper, but lawyers are careful to approach the issue with caveats. “Whilst it is appreciable that such a revolutionary measure was introduced to conventionalise collaborative dispute resolution, compelling legislation with equally progressive reforms must be set in motion for the resolution of disputes other than those commercially inclined,” says Gaurav Nair, founder at Saga Legal. Dingankar and Irani note that while their approach has always been to encourage clients to resolve disputes out of court, “forcibly pushing a client towards pre-litigation mediation” is not a practice in all cases, especially where there are serious allegations, or disputes where mediation would clearly be a futile exercise. “In case, after evaluating the facts, we believe that disputes may be resolved through pre-litigation mediation, we definitely encourage clients to explore this option,” they say.

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