Anshika Patel & Arkkisha Bagchi

Source: Wikimedia Commons

Abstract: This article critiques mediation in India as an unfulfilled promise to marginalised communities, despite the seemingly ideal framework of the Mediation Act, 2023. Barriers such as lack of legal awareness, economic constraints, regulatory vacuums, and disconnectedness from trusted informal systems, as well as structural issues such as unconscious biases, empathy gaps and social distance undermine the effectiveness of Mediation. This article proposes community-led models and regulatory reforms, warning that without an overhaul, mediation runs the risk of reproducing the very inequalities it was meant to address.

Introduction

The justice system in India is characterised less by adjudication than by delay. As of 2024, over five crore cases remained pending across courts, making timely justice inaccessible for extensive sections of the population. This has been addressed by encouraging Alternative Dispute Resolution (‘ADR’) and mediation in particular. Because of its consent-based, informal, flexible and relatively inexpensive nature, mediation is a tool that can help reduce the judicial backlog as well as improve access to justice.

The shift towards mediation is a phenomenon that has been witnessed worldwide. The EU Mediation Directive was adopted by the European Union to make access to justice more accessible and easier by supporting cross-border mediation, minimising costs of litigation, and helping parties settle disputes amicably. In many African countries as well, ADR practices such as mediation have become popular in courts. In Singapore, Community Mediation Centres provide free mediation for social and family disputes out of court. Mediation has been a part of the civil justice system in Australia for decades, where it is recognised as a way to increase access and affordability for citizens while also reducing the time spent resolving disputes. These developments are also important in terms of meeting human rights requirements. For example, access to justice is one of the UN’s Sustainable Development Goals (SDGs). Under SDG 16, member states are required to guarantee equal access to mechanisms of justice including ADR. In addition, the Oslo Forum invites mediators, conflict parties and policymakers from around the world to improve peacemaking processes. Its discussions address the challenges of reaching settlements in various settings such as Ukraine, Myanmar, etc., emphasising mediation as an effective and practical means of reducing violence and injustice.

Mediation, therefore, appears to be a good alternative for individuals who would stand to lose more than gain from formal litigation. It offers the possibility of solving disputes without intimidating courtroom procedures, legal technicalities or lengthy delays. Theoretically, it provides agency and facilitates dialogue. However, in reality, mediation has been largely unable to reach marginalised communities, as participation seems focused on commercial actors and urban disputes. Court-annexed mediation centres deal with disputes that are already in the formal legal system, while private ADR institutions tend to prioritise claims that have higher values. As a result, for the individuals who are most affected by costs, delays, and exclusion, mediation remains largely inaccessible.

This inconsistency raises the question: why does mediation, which was specifically designed to be accessible, systematically fail a large population of those who could benefit from it? The answer lies not in the design of mediation itself, but in the realities within which it exists.

The Mediation Act, 2023 codifies principles like voluntariness, confidentiality, neutrality of mediators, procedural flexibility and enforceability of settlements. Disputes can be resolved without lawyers, outside court, and in a manner that accommodates cultures, while the process remains particularly party-centric.

However, mediation proves functionally inaccessible to marginalised communities, not because of the absence of rights, but because of the absence of the social, institutional, and informational conditions that are necessary to exercise those rights. For mediation to take place as intended, there must be a baseline level of legal awareness, trust in formal institutions, economic security, and bargaining capacity. Yet these very requirements systematically exclude marginalised individuals.

Often, legal mechanisms which are formally neutral reproduce existing inequalities because they support repeat parties with resources, information, and institutional familiarity. For example, a large company which might appear for numerous arbitrations in a given period might often use the same law firms, have knowledge about more effective arguments and the strictness or leniency of specific arbitrators, and how to settle strategically. As Galanter argued, even with impartial systems, the “haves” consistently come out ahead. This is because the individual consumer, for example, who is not a repeat party, would lack the same level of familiarity with the process. They may lack proper representation and have no real way of knowing how similar disputes were handled previously. This phenomenon persists in mediation too, which puts marginalised individuals at a disadvantage by depriving them of the tools that a repeat party would possess despite the impartiality of the framework itself.

This article examines, through a three part structure, the mechanism by which the aforementioned inequalities are reproduced within mediation. Part I lays out the barriers which prevent marginalised individuals from accessing mediation, as well as the structural issues that render it comparatively ineffective in such a context. Part II lists out a set of recommendations to address these challenges, and Part III concludes by reflecting on the overall issue, while also reiterating the necessity for an overhaul.

Part I: Barriers and Structural Issues

1. Lack of Information and Trust

The fundamental barrier to mediation for marginalised communities is a lack of awareness. It has been consistently indicated that rural populations, Dalits, Adivasis, and informal-sector workers possess limited knowledge of legal rights and dispute resolution mechanisms. No police officer, lawyer, judge or government official has ever introduced mediation to the communities they have worked with. When it’s explained that informal settlements can be converted into legally enforceable agreements, such individuals often respond with doubt, fearing fraud or hidden costs. Importantly, even in relatively better-off villages, such scepticism remains as people show a similar distrust. This indicates that social marginalisation is independent of income.

This lack of information is exacerbated by a distrust of the legal system itself. Courts are generally viewed as slow, expensive, inaccessible, and biased. Decades of exclusion have taught marginalised communities that while formal legal mechanisms are imposed on them, they aren’t tools that can be used meaningfully. Under such circumstances, relying on informal enforcement mechanisms becomes a reasonable way to adapt.

Religious oaths and community sanctions are frequently used to enforce settlements. The “fear of God” is a main incentive for honouring agreements. From a socio-legal perspective, this is an example of legal pluralism. When formal enforcement is unreliable or inaccessible, informal institutions offer a predictable and immediate effect.

The shift from oral settlements to written agreements is the point where most marginalised parties face challenges in mediation. This is because parties, despite reassurances of confidentiality and enforceability, often refuse to sign documents. Such reluctance is created structurally, given that illiteracy and semi-literacy are still widespread among marginalised groups. It requires a lot of vulnerability to sign a document one cannot read, especially when the law is so associated with dispossession and exploitation. It would therefore be unreasonable to expect anyone to agree to a written settlement when they are unable to confirm its details. This is seen throughout, with requirements like documentation disproportionately excluding first-generation users of law.

Even though the mediation process is informal in nature, it does require a written agreement so that it becomes enforceable. Without an investment in legal literacy and trust-building, such a requirement is less of a protection than a limitation. What adds to this is that individuals who resolve disputes using social sanctions and religious oaths often do not foresee the possibility of agreements breaking down in the future, when the following generations may no longer share the same beliefs or fears. Legally, documentation safeguards the agreement from this very risk. But as far as the community is concerned, an immediate settlement would understandably be considered more important than future security.

2. Economic Barriers

ADR works on a commercial logic that structurally excludes marginalised parties. Most private ADR and online dispute resolution platforms limit their services to registered enterprises or have criteria like minimum claim values. Even disputes involving several lakhs of rupees may be too small to merit attention.

This is indicative of a wider critique of such ADR, where repeat parties become the focus of dispute resolution instead of individual ones. Although court-annexed mediation is supposed to be free, it involves indirect costs such as travel, lost wages, and documentation expenses. These costs are decisive to people such as those who work for daily wages, as they cannot afford to sit through the mediation process at the cost of their livelihood.

There is also a consistent trend of disengagement of parties once fees have been introduced, despite the oral settlement having taken place. While this can be framed as irresponsible, in reality, it’s a rational economic calculation. When survival becomes precarious, there seems to be no need to pay to legalise a settlement that has already been accepted.

3. Lack of Regulation

In India, mediation exists in an institutional vacuum. The Arbitration and Conciliation Act as well as the Mediation Act contemplate regulatory councils to certify practitioners and institutions. However, decades after the former and years after the latter, such bodies are still, to a large extent, yet to be established.

The lack of a regulator has two main consequences. First, it allows malpractice. Unilateral arbitration clauses, biased appointments and abuse of procedure were widespread for years and only recently curtailed through judicial intervention. Second, it creates a crisis of legitimacy for mediation that is community-based in nature. When practitioners approach community leaders or sarpanches, they are often asked who has given them the authority to mediate legally binding settlements, as without accreditation, even initiatives that are well-intentioned appear questionable.

This isn’t to say that mediation should be heavily regulated but to point out that mediation needs  a regulator like an enabling institution that would legitimise community mediation, set minimum standards, and build trust without compromising the flexibility of the process.

4. Systems of Informal Justice

Another point that’s worth noting is the scale of informal dispute resolution in India. While courts are overburdened with pending cases, disputes are resolved every day through community negotiations, village councils, panchayats, and other informal forums where most of the daily disputes in India are solved. Although these mechanisms are accessible, well-established, and trusted, they are not visible to the formal legal system since they are mostly undocumented and unenforceable.

Such a parallel system points out the problem and the solution. The mediation process does not need to introduce new practices for marginalised communities but simply legally recognise and enforce the existing practices. Power, bias, and legitimacy in dispute resolution, are other concerns that informal justice raises questions about. Any effort to make mediation truly accessible must address not only the problems of infrastructure and regulation but also questions about who is mediating, whose knowledge is really heard, and how neutrality is understood.

5. Unconscious Bias, Empathy Gap, and Social Distance

As stated above, theoretically, mediation offers dialogue, flexibility, and fairness, particularly to the people who experience formal courts as intimidating or unreachable.

However, in practice, mediation is frequently shaped by some unconscious prejudices and a social distance between mediators and parties. This can result in what social psychologists term the ’empathy gap’, and this factor can adversely affect fairness and consent in mediation.

This social distance occurs when mediators belong to different socio-economic, cultural, or educational backgrounds that are very different from the parties involved. A mediator who resides in an urban neighbourhood, has a higher financial standing and is legally educated might be incapable of comprehending the experiences of marginalised groups such as rural labourers, Dalit females or informal sector workers. This absence of shared experience might not be the result of any overt bias, however, it does work on a subconscious level, shaping what the mediator thinks is reasonable, fair, or practical.

The price of a settlement, such as that which might appear comparatively small to a mediator, could spell life or pride to a marginalised group. The concept of a compromise by a mediator is usually influenced by their perception of comfort and security. It has been observed that the assumptions regarding class and identity dictate whose claims are acceptable, which courses of action are preferred, and how negotiation is steered, usually against poorer or socially marginalised people.

It has been shown that the assumptions regarding class and identity dictate whose claims are acceptable, which courses of action are preferred, and how negotiation is steered, usually against poorer or socially marginalised people.

This problem is worsened by unconscious prejudice. Mediators, including those who consider themselves neutral, may be biased on the grounds of religion, caste, class or gender. Research on judges, lawyers and other decision-makers has consistently revealed that implicit bias influences their judgement in the credibility sphere, their interpretation of behaviour, and their risk assessment. In mediation, it may lead to unequal treatment of parties or even endorsement of one side of the story over the other, even though the impression of neutrality is preserved.

In the absence of a regulator, mediation can jeopardise fundamental human rights. Absent supervision, informal environments may recreate hierarchies that exist already and the autonomy of women may be eroded by coerced settlements. The firm-rooted caste supremacy may breach Dalit and Adivasi dignity and place retrogressive conditions which undermine life and freedom. The mediation process may marginalise women and minorities, coerce the weaker party to accept results that are not in their favour, and accord preference over law. This can be particularly detrimental when it comes to situations where violence or mass conflict has occurred, and survivors can be required not only to relive their trauma but also to have considerations like gender disregarded. Although not much research has been conducted on mediation in India, what we have learned about the legal system in India, in general, shows that there is a disturbing trend. Institutionalised stereotypes of Dalits, Adivasis and religious minorities have remained in the way lawyers determine truthfulness, competence and adherence to the law.

In legal-aid mediation, where mediators tend to be underpaid and overworked, cases concerning poor parties tend to be hurried through, with minimal effort to comprehend their standpoint. This thin mediation process defeats the very essence of mediation as a just alternative to litigation.

On the other hand, the strength of mediation lies in its informality. Contrary to criminal or civil litigation, mediation is consent-driven at all levels. Unless clearly agreed upon by the parties themselves, nothing is supposed to happen. Parties get to have a say all the way through, they are free to withdraw, stall the process, and turn down a settlement when it does not feel right. This is particularly advantageous in the case of marginalised populations. By allowing use of non-technical conversations, local languages, or informal settings, the dispute resolution may be more reachable and human to those who have an issue with language barriers, intimidating courtrooms, and fear of losing control after filing a formal complaint.

The same informality can, however, become dangerous when individuals do not have the full awareness of their rights. There are many marginalised parties who are not aware that they are permitted to challenge a mediator, request a break, invite someone they can trust, or even decline to sign an agreement. In these cases, pressure is exerted under the carpet. What might appear to be a voluntary agreement, in fact, might be influenced by fear, misunderstanding, misinformation, or power inequality.

This is especially acute in India, where mediation is highly confounded with police-brokered so-called compromise talks or court-annexed proceedings. The presence of authority figures may lead to the impression that refusal is not possible. This makes mediation an imitation of the formality of the courtroom that it was designed to mute, and deprived parties reasonably believe that saying no will have some negative ramifications on them.

Finally, the problem is in the absence of awareness. Awareness enables parties to counter the effects of social distance and bias, to use informality as protection instead of coercion, and to convert informal settlements into legally enforceable outcomes when desired. Without legal literacy, mediation risks becoming a paper promise rather than a lived protection.

Part II: Recommendations

To make  mediation work for the majority, three interlinked shifts are required. First, building awareness and trust is essential so that people view mediation as a rights-based choice, not quiet pressure to settle. Second, infrastructure democratisation i.e., mediation must then be placed where people already are, physically and digitally, at costs they can afford, with mediators they trust. Third, regulatory legitimisation must ensure inclusion, prevent capture by powerful repeat players, and curb abusive practices, all without compromising flexibility.

1. Community-Led Mediation in India

One of the most important lessons from practice-based mediation is the value of community-rooted mediators. Disputes involving marginalised parties are often resolved more fairly when mediation is led not by distant professionals, but by people who already command trust and legitimacy within the community, such as sarpanches, local leaders and elders, or respected business figures. Unlike professional mediators who are paid per case, these individuals have a personal reputational stake. Their standing depends on being seen as fair, especially by those who hold less power.

Village-level institutions in India like Gram Kachaharis in Bihar and Nyaya Panchayats in other states have shown that many everyday disputes, particularly small civil disagreements, family matters and neighbourly conflicts, can be resolved quickly and effectively at the local level. They are not effective due to their legal expertise, but rather due to accountability. These leaders are accountable to their neighbours of different castes, classes and politics. Other nations like Philippines and Indonesia are following similar trends wherein local dispute resolution is most successful when leaders are trusted, recognised, and lightly supervised and integrated into the normal daily administration.

2. The Plug-and-Play Mediation System

Concurrently, experience also reveals the threats. Left uncontrolled, community forums may reinforce the existing hierarchies, patriarchy, caste dominance or religious majoritarianism. The real issue, consequently, is not whether the community leaders ought to mediate or not, but how to incorporate them into the mediation systems without allowing the already existing power imbalances to establish themselves once more. Feminist studies of ADR (particularly of mediation) caution that in informal or traditional forums, women and marginalised populations are likely to remain unheard unless these forums are grounded in explicit rights-based ideals and supported by effective review processes. This means that community mediation will be most effective when it is not used in place of the law, but as an adjunct to it.

The concept of the plug-and-play mediation system is applicable here. It should be easy to initiate mediation even on small, day-to-day differences as described above, using the places where people have already developed trust. In this paradigm, parties would be free to select a mediator with whom they feel comfortable, whereas paperwork, legality and enforceability are quietly handled by a recognised mediation institution. The procedure remains cheap, comfortable, and much less intimidating than a courtroom.

This strategy resembles the way individuals solve conflicts already in other parts of the world. Where dispute resolution is located in settings that are already visited by people such as panchayat offices, municipal offices, trade associations or even community centres, access is enhanced immediately. It prevents mediation from appearing like a lawyer-led procedure and begins to appear like a systematic variation of what communities are already doing.                                                                                                                                  

India takes this direction already, through its Mediation Act, 2023, where community mediation is identified to handle local disputes. Nevertheless, the system fails due to non-efficiency of the institutions that are to support it. This poses a gaping hole: an operating regulator.

3. Need for Regulation and Legitimisation in India

The problem with mediation in India is not over-regulation but rather a lack of legitimacy. Practitioners who engage with community leaders are often called into question regarding their authority while parties are concerned about whether outcomes will stand the test of the law. This could be resolved through a working Mediation Council, which would accredit institutions, recognise community mediator panels, constantly oversee the process, mandate formal training, have more definite selection criteria and exercise the suo motu power of termination. This would shield community mediators from legal uncertainty and provide parties with some assurance that their settlements do count.

Other models, like the opt-out mediation system of Italy offer a good road map to be emulated in India. An initial mediation session involving civil or commercial disputes by accredited mediators would record high levels of settlements and keep the process voluntary with soft compulsion. India can use gradual staged pre-litigation gateways through tax exemption, standard training, and lawyer certification of settlements to allow easier enforceability.

The regulation is also an important factor in avoiding abuse. The misuse of the unilateral arbitration clauses in contracts shows that in the absence of oversight, the process of dispute resolution can be designed in a manner that supports the stronger side. Most individuals find themselves accepting unfavourable terms simply because they do not know their rights. This can be averted by a proactive regulator by providing clear rules and public notifications, as well as by liaising with consumer protection agencies.

Part III: Conclusion

While the mediation system in India offers an accessible alternative to the formal court system, the issue lies in that implementation is prioritised for urban and commercial users. Structural barriers such as limited legal awareness, economic constraints, and regulatory gaps, as well as social biases, make mediation inaccessible to marginalised communities. These factors provide repeat players with an edge, while traditional and community practices, though trusted, remain unregulated and unenforceable.

To be truly equitable, mediation practice should not be limited to the training of mediators, but should also involve long-term public legal education. It is imperative that parties know about their rights, options, and the choice to exit. Until mediation is rebuilt from the ground up, through awareness, accessible infrastructure, and enabling regulation, it will continue to fail those it was meant to serve the most. It will perpetuate the very inequalities it aimed to eliminate.

Anshika Patel is a third-year law student at Gujarat National Law University with interests
in human rights and eager to explore the field of public policy.

Arkkisha Bagchi is a second-year law student at Gujarat National Law University pursuing
a B.A L.L.B degree. She has interests in Constitutional Law and human rights.