Forcing parties into mediation ‘always a bad idea’, says Delhi HC Justice Anup Bhambhani

Forcing litigants into mediation is “always a bad idea” and there can be no one-size-fits-all approach to deciding when parties should attempt settlement, Delhi High Court judge Justice Anup Jairam Bhambhani has said, underlining that willingness and the nature of a dispute are crucial to successful mediation.

Speaking at the Commercial Mediation Conclave 2026, Justice Bhambhani said parties may become more receptive to settlement at different stages of litigation. In some cases, years of legal proceedings and the resulting “litigation fatigue” may prompt parties to reconsider whether continuing the courtroom battle serves their interests.

Timing depends on dispute

Justice Bhambhani said the appropriate point for beginning mediation depended on the circumstances of each dispute rather than a predetermined stage in litigation.

Parties who have been litigating for a long period may eventually recognise that they have been pursuing the wrong course, he said. In other cases, mediation may become viable once the strengths and weaknesses of the competing claims become clearer.

The considerations can be different in commercial disputes involving continuing relationships. Construction contracts, for instance, may require parties to continue working together despite disagreements, creating a practical incentive to settle rather than pursue prolonged litigation.

Justice Bhambhani was participating in a fireside discussion on mediation in construction disputes with former Supreme Court judge Justice Hima Kohli. The session was moderated by Mehak Oberoi, author of Construction Mediation: A Practical Handbook, which was also launched at the conclave.

Mediation a distinct skill

The Delhi High Court judge also cautioned against assuming that expertise in adjudication automatically translated into expertise in mediation. He described mediation as a standalone and highly specific skill, saying the mediator must understand the underlying “pathology” of a dispute. A mediator need not necessarily be a technical specialist in the field concerned, he said, since expert assistance could be sought when dealing with specialised areas such as patent or construction disputes.

Justice Kohli similarly emphasised the distinction between the roles of a judge and a mediator. A person conducting mediation, she said, has to adopt a different approach and should not allow judicial authority to overlap with the mediator’s role. She recalled undergoing mediation training while serving as a Supreme Court judge.

Government settlements difficult

Another issue discussed at the conclave was the difficulty in resolving disputes involving government departments and public sector undertakings.

Justice Bhambhani said government officials were often reluctant to make decisions in settlement negotiations. He suggested that high-powered committees comprising senior officials could examine and approve settlements, providing institutional support to individual officers.

Justice Kohli said officials could recognise that accepting a settlement was commercially sensible but still hesitate because of concerns over audit objections, allegations of corruption or possible consequences for their careers. Such apprehensions could lead officers to prefer allowing courts to decide disputes rather than accepting responsibility for a negotiated financial settlement.

She stressed that officials representing government bodies in mediation should have both institutional backing and adequate authority to take financial decisions.

Judges not automatically mediators

Former Supreme Court judge Justice Kurian Joseph, speaking at another session at the conclave, also cautioned against equating judicial experience with mediation ability. He said merely having served as a judge did not by itself qualify someone to become a mediator. Justice Joseph also highlighted the emotional dimensions that can exist beneath apparently straightforward commercial disagreements.

Senior advocate Sajan Poovayya, meanwhile, argued for greater subject-matter expertise in complex commercial mediation. He questioned whether parties involved in highly technical disputes — such as power-sector cases concerning tariffs, imported coal and specialised regulatory issues — would necessarily have confidence in a generalist mediator unfamiliar with the sector. Poovayya said statutory mediation institutions should develop a wider pool of specialist commercial mediators capable of understanding the business and technical context of disputes.

The discussions highlighted a central challenge as India seeks to expand mediation as an alternative to prolonged litigation: increasing its use without reducing it to a compulsory procedural exercise. The speakers broadly stressed that effective mediation depends not merely on sending parties to the negotiating table, but on willingness, appropriate timing, institutional support and mediators equipped to understand the dispute before them.