Supreme Court Justice BV Nagarathna recently criticised state bodies for what she said pursuing 'hopeless cases' that waste public money, while supporting the adoption of mediation.
“If a government body goes on initiating another round of litigation where there exists no likelihood of success, our country’s resources will continue to be improperly used and judicial time mislocated," she said.Calling upon lawyers to see themselves as “healers of human conflict", Justice Nagarathna also urged the judiciary to embrace the Mediation Act, 2023, emphasising that it represented Parliament’s intent to expand access to justice and ease the burden on courts.
She rejected the idea that mediation was a diluted form of justice, framing it instead as timely, accessible and equitable.“Mediation is a new dimension not only to achieve justice, but to access justice,” she explained.Her sectoral suggestions included green mediators for environmental disputes, patient advocacy groups for healthcare mediation, WIPO-style systems for IPR and mediation clauses in start-up agreements. As Chairperson of the Juvenile Justice Committee, she also urged victim–offender mediation in juvenile cases, handled by trauma-informed mediators.
The remarks were made at the Second National Mediation Conference held in Bhubaneswar on September 27, during a session titled Enhancing the Eco-system for Mediation in India. The session was chaired by Justice Nagarathna and co-chaired by fellow judge Justice N Kotiswar Singh and Himachal Pradesh High Court Chief Justice Gurmeet Singh Sandhawalia. The panel comprised Justice Jayant Banerji of the Karnataka High Court, Former Maharashtra Advocate General Birendra Saraf, Chhattisgarh Advocate General Praful N Bharat and Senior Advocates Jawad AJ and Geeta Ramaseshan.
Saraf delivered a sharp critique of the ineffectiveness of pre-litigation mediation under Section 12-A of the Commercial Courts Act.
Citing a study by the Economic Advisory Council to the Prime Minister (EAC-PM), he said that statistics from two commercial courts in Maharashtra revealed that “97 to 99 per cent of cases were non-starters where parties did not even effectively participate. Of the remaining, only around one per cent ended in successful settlement.”
Justice Kotiswar Singh called for bridging the “mediation divide” between metropolitan and rural districts. He also urged the Bar Council of India to integrate mediation into law school curricula.
“A lawyer is the first person of contact through which the legal system is invoked…therefore, there has to be a paradigm shift in the training of lawyers,” he said.
Justice Sandhawalia highlighted the role of mediation in Himachal Pradesh’s ecological and developmental disputes, citing landslides caused by four-laning projects, displacement from river valley projects and industrial pollution.
“What is required today is collaboration among the state, corporates and individuals, so that ecological damage, displacement and livelihood issues can be addressed through mediation,” he said.
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