Institute of Legal and Management Studies

Supreme Court judge Justice BV Nagarathna underlined the pressing need to broaden the scope of mediation in India beyond commercial disputes, calling it a vital tool for resolving conflicts in sectors such as environment, healthcare, intellectual property, corporate governance, public contracts, and even Juvenile Justice Act matters.

She vouched for the victim-offender mediation (VOM) in the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), in order to truly give effect to the principles of restorative justice in the proceedings of the Juvenile Justice Boards.

Speaking at the 2nd National Mediation Conference on 'Enhancing the Eco-System for Mediation in India,' Justice Nagarathna stated that the JJ Act 2015 is predicated on the understanding that children in conflict with the law require care, protection and opportunities for reintegration, rather than harsh punishment. In order to achieve this, tools like VOM can be a safe space for fostering dialogue between the victims.

"To truly give effect to the principles of restorative justice in the proceedings of the Juvenile Justice Boards, tools such as victim-offender mediation (VOM) need to be more regularly employed. In contrast to merely negotiating settlement between parties, VOM can be a safe space for fostering dialogue between victims. It is a duty of the criminal justice system to give space to victims to express the impact of the harm they have suffered, and the juvenile offender to understand the real-world consequences of their actions, take responsibility, and express remorse. This method achieves a goal that retributive punishment cannot achieve."

Justice Nagarathna said that the way ahead in adopting this method requires an assessment of the on-ground realities and then making an action plan for the implementation within the otherwise state-centric criminal justice system.

She added that she is quite keen to hear how other expert mediators respond to how we could envisage the development of a national curriculum for training and certifying mediators, specifically in VOM for juvenile cases.

Justice Nagarathna suggested that the training of mediators for dealing with children in conflict with law must be trauma-informed and must incorporate principles of child psychology and restorative justice facilitation.

Mediation in government-led disputes need not be looked at with suspect

Justice Nagarathna welcomed the Office Memorandum of the Ministry of Finance, which laid down guidelines for arbitration and mediation in domestic public procurement contracts, noting its recognition of a peculiar feature of government-led litigation : that the acceptance of an adverse award, without exhausting all judicial remedies, is often viewed by authorities as improper despite the award's finality.She warned that if a governmental body keeps initiating another round of litigation only to exhaust judicial avenues, the country's resources will continue to be improperly used.

"In my view, if a governmental-body keeps initiating another round of litigation only to exhaust judicial avenues where there exists no likelihood of success, our country's resources will continue to be improperly used and judicial time misallocated. I think for any radical improvement in government-led dispute resolution, and most specifically for propelling mediation as a legitimate method of dispute resolution, there is an impending need to transform this outlook."

Consider setting up specialised panel of accredited 'green mediators'

Justice Nagarathna stressed the use of mediation in environmental and climate disputes, which are multi-faceted socio-ecological challenges that involve a wide array of stakeholders, and a delicate balance between developmental imperatives and ecological preservation.

She said that mediation, with its inherent flexibility, participatory nature and focus on interest-based solutions, is uniquely positioned to address such challenges.

She suggested that, for instance, a mediation settlement in a pollution dispute could include not just compensation, but also commitments to habitat restoration, the establishment of joint monitoring committees, or community benefit-sharing agreements. In order to achieve that, she suggested that the Mediation Council of India must consider setting up a specialised panel of accredited green mediators.

"The Mediation Council of India must consider establishing a specialized panel of accredited “green mediators”. These individuals would require a unique skill set, combining expertise in mediation techniques with a deep understanding of environmental law, climate science, public policy, and socio economic impact assessment. Creating a dedicated roster of such experts would ensure that complex environmental cases are handled by neutrals who can grasp the technical nuances and facilitate informed, science-based negotiations."

Drawing inspiration from the US Environmental Protection Agency, which has institutionalised the use of environmental collaboration and conflict resolution, she said that the task would involve training cohorts of specialised mediators, advocating for the viability of mediation in environmental disputes and ensuring real and meaningful participation of all stakeholders.

On healthcare and medical negligence, Justice Nagarathna flagged the structural imbalance between patients and powerful healthcare institutions. She recommended that Patient Advocacy Groups be formally integrated into mediation processes to ensure patient voices are not lost in the adversarial system.

Speaking on intellectual property disputes, the judge highlighted the benefits of mediation's confidentiality and flexibility. She stressed that unlike litigation, which often delivers binary outcomes, mediation can yield creative solutions such as co-existence agreements, phased rebranding, licensing, or joint marketing — outcomes that “preserve commercial value and relationships.”

Justice Nagarathna also pointed to corporate and start-up disputes, where confidentiality through mediation can safeguard reputation and value. She advocated for mediation clauses to become standard in Founders Agreements, Shareholder Agreements and Term Sheets, noting that “a founder dispute resolved in weeks rather than years could mean the difference between success and collapse.”

Concluding her address, Justice Nagarathna invoked the Supreme Court's words in Patil Automation Pvt Ltd v Rakheja Engineers Pvt Ltd (2022), reminding the legal fraternity that mediation offers a way out of the “crippling costs, procedural wrangles, and delays” of litigation. “Mediation must be seen not as a secondary option, but as a legitimate and powerful first resort in resolving disputes,” she said.

The Conference was organised under the aegis of the Office of the Advocate General for Odisha and the Department of Law, Government of Odisha.