The idea of mandatory pre-litigation mediation

I blogged here and here about litigation involving the government in India.

Analysis of the data from the National Judicial Data Grid (NJDG) shows that Indian courts have around 5.58 Cr pending cases as of March 2026, which clog the judicial system and delay the delivery of justice. Worse still, the numbers continue to mount as the inflows far exceed the outflows. The case clearance ratio (ratio of cleared cases and registered cases) is 55-59% for the Supreme Court, 28% for High Courts, and 40% for subordinate courts.

The primary proposed solution to address the problem is to increase the number of courts and judicial officers. However, while required, this is unlikely to meaningfully address the problem. Like with Parkinson’s law, which is evident across sectors, cases are likely to expand to fill up the increased number of courts and judges. 

Here, it’s useful to bear in mind a central insight from the judicial process. Once a case is admitted, it takes years to close. For example, simple suits often take 2–5 years, property or corporate cases often take over 7–10 years, and the average High Courts’ pendency per case in 2022 was 5.47 years. 

In the circumstances, the best efforts should be made to settle the case at the admission stage itself, albeit without compromising the interests of the litigants. In other words, how can the pre-litigation process, in the form of an institutionalised mediation process, become more effective in screening and settling cases? This should become a major focus of the courts and governments. 

This is especially important since a major share of disputes that enter the formal legal system could be resolved outside it, at lower cost and with greater speed, if a credible, accessible, and abuse-resistant pre-litigation mechanism were in place. In this context, how about a digitally enabled, third-party delivered, court-overseen pre-registration screening and mediation (PRSM) framework that intercepts eligible disputes before they are formally filed and routes them through certified mediation?

On this, Italy, Turkey, and the US offer very good examples. Since 2010, Italy has had a mandatory pre-litigation mediation mechanism, which is delivered through private mediation centres, and has a settlement rate of 50%. It covers broad categories of civil disputes. The mediators are accredited, undergo mandatory training, and the settlements are enforceable as a court decree. Turkey has successfully adopted mandatory pre-litigation mediation since 2018, first for labour disputes and then for commercial and consumer disputes. In the US, there’s a mandatory court-annexed Alternative Dispute Resolution (ADR) framework, which is implemented through court-contracted private mediators and magistrates. It has a striking 70-85% settlement rate. 

There are some important takeaways from these successful examples. One, voluntary-only is insufficient, and where mediation is optional, uptake is less than 5%. Two, to avoid coerced settlement, the mandatory requirement must be for attendance at a first session. Three, in all the successful examples, third-party delivery works. Neither courts nor government agencies need to conduct the mediation; they need only set standards and enforce compliance. Fourth, to make it attractive, mediation must be measurably faster than litigation. Fifth, the binding constraint is mediator quality. In the absence of a rigorously monitored credentialing system, mediator quality can be a big failure node. 

Finally, the entire process must be done on a transparent digital workflow. This should include the random allocation of a certified mediator from the accredited registry, immediate scheduling of sessions, conduct of sessions in person or online dispute resolution (ODR) channel, digitally signed agreement (or opt-out, if the party prefers this) with the mediation log captured through an AI tool and automatically attached to the case file to be filed for orders that are enforceable under the Mediation Act 2023. 

Unfortunately, India’s current pre-litigation model, revolving around the district legal services authorities (DLSA), fails on all these counts — poor credibility, under-resourced, slow, untrained, and without a digital backbone.

This prelitigation mediation system should benefit from a diverse ecosystem of certified third-party providers. Apart from private professional firms, there should be bar-affiliated mediation centres, NGO or civil society institutions, industry/sector bodies, and the existing DLSAs. The mediators must be mandated to satisfy some minimum requirements, regardless of type - some minimum number of trained mediators per office, integration with the mediation workflow, financial audit, and other disclosures and safeguards. There should be zero tolerance for abuse and manipulation by mediators. The accreditation should be for 3-5 years and done through a combination of performance parameters drawn from its digital trails in the workflow, and through qualitative evaluation. 

The governance architecture should be three-tiered, covering the national, state, and district levels. There should be a single national digital platform that generates a unique Mediation Reference Number (MRN) for each dispute, links to the NJDG for court reference, and provides real-time dashboards accessible to all oversight tiers.

A big threat to the success of this endeavour will come from the political economy, specifically the legal ecosystem that currently benefits from protracted litigations and an ever-expanding pool of cases. Counsels will naturally find ways to throttle mediations. 

The critical success determinant will be the value that litigants see in adopting this path. This, in turn, depends on its efficiency and effectiveness. The fairness and quality of mediation are central to establishing the requisite credibility before litigants. This brings us to the earlier-mentioned binding constraint, the quality of mediators. Unfortunately, we cannot quickly develop a supply of good-quality mediators. It must evolve, especially in systems where human resource capabilities are weak. 

Without having a pipeline of good-quality mediators, mandating mediation requirements runs the risk of bad implementation and thereby tarnishing the idea itself. An illustration is the set of challenges associated with the insolvency resolution process, where inadequate capabilities and abuses by insolvency resolution professionals are major problems. Accreditation systems across facilities (clinics and hospitals, schools and colleges, ITIs and training institutions, and so on) have become compromised due to deficient capabilities and capture of accreditors. 

One solution would be to start small in a few locations (districts) and that too for a few selected categories of cases, coupled with intense training and other capabilities-building support. The initiative could be expanded gradually thereafter. It would also be useful to identify ways to align counsel's interests with the mediation process. One way would be to even pay the counsels a fee for successful mediation settlements.