*Mayank Yadav & Priyam Mitra

(Source: Shruthi Desai)

The Mediation Act, 2023 marks a historic recognition of India’s indigenous dispute resolution system i.e. community mediation. The paper argues that though well-intentioned, the Act, in lieu of formalisation, imposes bureaucratic hurdles and rigid processes, in effect losing the essence of traditional method of mediation. Positing a two-pronged critique, the paper argues that painting with too broad a brush, the Act inadvertently subsumes community mediation within the broader mediation framework, and lacks cohesive mechanisms for effective execution of the same.

I. Introduction

India has a long and enduring tradition of community-based dispute resolution which is rooted in local practices that even predate the modern legal system. Village panchayats, respected elders, and informal councils have all historically played a central role in resolving disputes within the communities. These forums have traditionally focused less on strict legality and more on promoting reconciliation, harmony, and the restoration of social relationships. The methods used were participatory and more importantly grounded in the cultural norms of the community, enabling them to settle conflicts in a manner that was widely accepted as legitimate and just. Over time, however, the growth of the colonial and postcolonial legal systems sidelined the authority of such mechanisms. It came with a cost as the shift toward a greater reliance on formal courts has contributed to the massive judicial backlog, making dispute resolution slower, more expensive, and less accessible for many. In response, the Indian judiciary and legislature have recognised the values attached to Alternative Dispute Resolution (ADR) and have begun to actively promote its use. Section II traces these developments in detail.

A major landmark change in legal consciousness was ushered in with the enactment of the Mediation Act, 2023, which explicitly recognises community mediation alongside other forms of mediation for the first time in India legislation. Looking beyond the Act’s rose-tinted exterior, this paper examines the historical and contemporary landscape of community mediation in India and critically analyses how the Mediation Act 2023 addresses (or fails to address) it. In section III, we argue that the Act while being a historical step, tends to conflate community mediation with conventional mediation, failing to provide a truly distinct mechanism. The Act formally introduces community mediation, however, the Act’s broad definition of mediation and its procedural provisions effectively subsume community mediation under the general mediation framework. This piece argues that this approach fails to capture the unique features of community dispute resolution.

II. Historical Trajectory of Community Mediation in India

For centuries, Indian villages have relied on informal councils and elders to resolve disputes. Village panchayats (assemblies of local elders or leaders) historically settled family and property conflicts by drawing on local norms, customs, and social obedience than formal law. Community enforcement (social pressure) often sufficed to uphold panchayat decisions. This tradition “went out of vogue” during British colonial rule. As by contrast to earlier, colonial authorities imposed a centralised, adversarial judiciary. While the earlier system was fraught with concerns of marginalisation (only a certain section of the populace were considered as “elders” for mediation (page 3)), this change resulting in complete abdication of the system seems to be an extreme response. A better way of reform would be to preserve the goods of the system while reforming specific aspects of the process.

The adversarial process is costlier, more time-consuming, and often inefficient compared to traditional community mechanisms (with respect to specific types of disputes). Although early British reforms (Mayo Resolution 1870, 1882 Act, Montagu–Chelmsford reforms) formally recognised panchayats, these institutions were soon eclipsed by courts. As one historian notes, although village panchayats were given legal powers in five provinces, they “soon lost their importance, partly due to their subversion by the British court system”.

The post-independence Republic largely preserved the colonial court system, and as a result the formal courts replaced much of the erstwhile village dispute resolution system. Reforms ensued with respect to the Panchayati Raj system and recognition of local self-government, however, these reforms did not address the powers of the village assemblies in the domain of dispute resolution through community mediation. This transition created its own institutional challenge, the formal court system became increasingly burdened, leading to massive case backlogs. Recognizing these systemic problem, India began attempting to revive ADR mechanisms. The Legal Services Authorities Act of 1987 empowered Lok Adalats (people’s courts) to settle petty disputes, plus a significant legislative development came with the 1999 amendment to the Civil Procedure Code, which inserted Section 89, requiring courts to consider whether cases could be referred to arbitration, conciliation, mediation, or Lok Adalat for amicable settlement. The scope of this section was further clarified by the Supreme Court in Afcons Infrastructure Ltd v Cherian Varkey Construction Co, which emphasized the importance of mediation within the civil litigation framework,  holding that even unwilling parties could be referred to ADR if it appears appropriate to the court.

However, these reforms primarily addressed formal, court-annexed processes than emphasising the traditional community mediation which is germane to our legal identity. The gap between formal ADR mechanisms and extra-legal grassroots community practices persisted, creating a bifurcated system where institutionalised mediation served commercial and civil disputes while community conflicts continued to rely on informal and unrecognized processes. Data shows that around 90 percent villagers prefer going to village elders and Panchayats when dealing with disputes (page 5). Villagers are subject to institutionalised mediation in limited cases where the Court compels them to do so in cases of matrimonial and property disputes. Against this backdrop, the Mediation Act, 2023 was enacted to provide a comprehensive statutory framework for mediation, explicitly recognizing community mediation for the first time alongside pre-litigation mediation and online mediation.

III. Community Mediation under the Mediation Act

• Statutory Provisions under the Mediation Act:

Chapter X of the Act (Sections 43–44) explicitly provides for “community mediation.”

Section 43(1) states:

“Any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.”

Section 43(2) requires any party to such a dispute to apply to the Legal Services Authority or, where none exists, to the District Magistrate (DM) or Sub-Divisional Magistrate (SDM) for referral to mediation. Section 43(3) then directs the concerned authority or DM/SDM to constitute a panel of three community mediators to facilitate the settlement. A “permanent panel” of community mediators is to be notified (and periodically revised); eligible persons include local individuals of good standing (e.g. community leaders, civil society figures) or those with mediation experience.

Section 44 elaborates this  procedure and empowers the panel of mediators to “devise suitable procedure”: Crucially, Section 44(4) provides that any settlement under this Chapter is “for the purpose of maintaining the peace, harmony and tranquillity … but shall not be enforceable as a judgment or decree of a civil court.” In other words, community mediation agreements have no direct enforceability in court. The next section critically examines these sections as perpetrators of appropriating community mediation, stripping it of its essential hues.  

• Painting with too Broad a Brush?

The Mediation Act 2023 represents a landmark in India’s ADR framework by explicitly  covering mediation and it’s different types. Chapter X is novel, as for the first time, the legislature has explicitly endorsed community mediation as dispute resolution aimed at local harmony. However, on critical analysis, the Act reveals itself as conflating community mediation with regular mediation. It is argued that community mediation is subsumed under the broad definition of “mediation,” and in defining it with too broad a brush, the original hues of community mediation are lost.

The paper has a two-pronged critique to the framework established by the Act. A first and primary argument is mounted on the assertion that the Act effectively subsumes the category of community mediation under the broad aegis of conventional mediation under the Act. In every process of legal formalisation, one is bound to lose specific features of the process in lieu of standardisation. However, in doing so, the Act effectively provides for a new method of mediation which is deviant from the traditional ways which have garnered obedience since eons. A cursory look at section 43 clauses (3), (4), and (5), brings out this aberrance clearly.

While approaching the DM/SDM under clause (3) of section 43 may be accepted as a necessary implication of incorporation of community mediation in the larger bureaucratic structure, the clause also restricts the number of members to be part of the panel to merely three. This has been previously flagged by the Standing Committee report as being too rigid a limit (clause 3.201), especially when one considers the historical context in which community mediation was traditionally practiced. Historical practice has varied widely with respect to the number of members, but this furthers the claim that for certain disputes, the number of members may need to exceed this rigid limit depending on the nature of dispute. Allowing flexibility here is essential to reinforce the idea that community mediation under the Act is a natural successor to the practice followed in villages, which has garnered legitimacy, and not a mere imposition of a process foreign to its subjects. Members of Gram Sabha, the village panchayat, and village elders, generally used to be a part of the process ensuring a) legitimacy to the process and b) guarding against defiant attitude of parties towards its enforcement. Clause (4) is also a manifestation of this tendency of favouring bureaucracy efficiency over enabling substantive justice. By allowing for a permanent panel of community mediators, the Code, discounts the important essence of community mediation which allows for the number and backgrounds of mediators to be flexibly tailored to the societal standing of the parties.

A second and more technical prong of the critique lies in the provisions governing implementation of the settlement reached through this mediation. Section 44 clauses (3) and (4) are important in this regard. While clause (3) allows for this settlement reached to be reduced to writing and signed by the parties, clause (4) makes it clear that the purpose of this settlement shall be limited to only “maintaining the peace, harmony and tranquillity amongst the residents” and shall not extend to being enforceable as a decree of the court. The provision may be hailed as a well-intentioned safeguard ensuring a safe space nurturing voluntariness for the parties. However, this stands in complete opposition to the way conventional mediation is deemed as enforceable by the Code (Section 27(2)). Non legal enforceability of the Act could have been justified if the process was similar to the traditional way of community mediation ensuring compliance through social pressure and conformity. As highlighted in the first prong of the critique, the Act significantly departs from such features of community mediation by limiting the number and composition of members; this further problematises enforcement of community mediation settlements under this Act. Going through bureaucratic struggles coupled with the non-promise of enforcement, community mediation in a drastic way may not remain a viable method of dispute resolution even for a sector of the society which has been accustomed to this method. 

IV. Conclusion

The Act, although represents a historic step by recognising community mediation, as mentioned before, it paints with too broad a brush, conflating traditions with conventional mediation, which in reality transforms the original hues of community dispute resolution, creating a mechanism that fails to honour its indigenous roots.

By this failure, the Act runs the risk that community mediation stays on the periphery, neither fully informal nor fully integrated. In practice, villagers may remain unaware of this option, or be reluctant to pursue it given the bureaucratic hurdles and lack of legal teeth. Studies have shown that for processes involving local bureaucratic institutions (like the DM), villagers prefer “in house” resolution because these formal processes often involve influence, corruption, and similar practices, which act as deterrents. True community mediation might flourish best when encouraged through sensitization and linkage to local governance structures. The Act does not tap into existing Panchayati Raj institutions or customary councils, missing an opportunity to bridge formal law with popular justice.

The result is a legislative framework that, despite good intentions, may inadvertently undermine the very traditions it seeks to preserve, leaving communities with neither the organic flexibility of their ancestral practices nor the legal certainty of modern mediation.

*Mayank Yadav is a third year B.A. LL.B. student at the National Law School of India University.

*Priyam Mitra is a third year B.A. LL.B. student at the National Law School of India University.

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