Make pre-litigation mediation must: CJI

New Delhi, February 8

Noting that judging is a difficult task, Chief Justice of India SA Bobde on Saturday said that popularity was a mirage for judges who tried to resolve disputes that others shunned. He was addressing the ‘3rd International Conference on Arbitration in the Era of Globalisation”. The CJI said judges aimed to resolve a dispute but dissatisfaction resulted in a hierarchy of appeals.

“Judging can be a difficult task and judges do what everybody avoids doing, i.e take decisions. Popularity is a mirage for judges. The idea is to resolve a dispute. But dissatisfaction with the outcome results in a hierarchy of appeals which cannot be avoided.” Highlighting the importance of alternative dispute resolution, he said the judiciary had no control over it and it should not interfere with awards given by arbitrators. The CJI mooted the idea of a comprehensive law for “compulsory pre-litigation mediation” to ensure efficiency and reduce pendency. He said a robust “arbitration bar” was critical to developing institutional arbitration in India as it would ensure availability and accessibility of practitioners with knowledge and experience.

“The pre-institution mediation and settlement as mentioned in the Commercial Courts Act would pave the way for many more institutions to emphasise on the need for pre-litigation mediation, considering its very many benefits. I think the time is ripe to devise a comprehensive legislation which contains compulsory pre-litigation mediation and a remedy for the biggest drawback in a mediation agreement, that is to say the unenforceability of an agreement arrived at a mediation would ensure efficiency.”

Maintaining that arbitration played an essential role in global infrastructure of international trade, commerce and investment, he said as an integral member of the global community and a trading and investment giant, how India engages with international arbitration had important ramifications on international trans-boundary flow of trade, commerce and investments as a whole.

He, however, cautioned against arbitration mirroring litigation. “The time-consuming methods of long oral arguments, long written submissions and a reference to precedence are bound to bring about the same effect in arbitration as it is done in litigation,” he maintained.

Advocating the use of disruptive technologies, the CJI said, “Both ‘IA’ (International Arbitration) and ‘AI’ (Artificial Intelligence) are leading alternatives to status quo: IA to traditional methods of dispute resolution, AI to traditional methods of performance.”