"Even though mediation is speedier, more cost-effective and offers greater possibility of preserving the relationship between disputing parties, the existing mediation framework in India has not allowed for reaping its f

Despite mediation being a speedy, cost-effective and relationship-preserving dispute resolution mechanism, mediators in India face several structural and practical difficulties in its effective implementation. 1. Legislative and Procedural Ambiguities under Section 89 CPC One of the primary difficulties faced by mediators arises from ambiguities in Section 89 of the Code of Civil Procedure, 1908. In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010) , the Supreme Court highlighted drafting defects, particularly the incorrect use of the terms "mediation" and "judicial settlement" and the lack of clarity regarding the stage and manner of referral to mediation. Although the Law Commission of India, in its 238th Report, recommended suitable amendments, these have been implemented, leading to uncertainty in mediation referrals. 2. Low and Improper Referral of Cases to Mediation Mediators often face difficulties due to inadequate and inconsistent referrals by courts. Data from High Court Mediation Centres shows limited utilisation of mediation indicating that Section 89 CPC is not being used to its full potential. 3. Uncertainty Regarding Enforceability of Mediation Settlements Another major difficulty is the lack of clarity regarding enforcement of mediation outcomes. The Supreme Court in Afcons Infrastructure clarified that court-referred mediation settlements must be placed before the court and are governed by Section 21 of the Legal Services Authorities Act, 1987. However, enforceability of pre-litigation or ad-hoc mediation settlements remains unclear, discouraging parties and lawyers from relying on mediation. 4. Absence of Mediation Culture and Prevailing Misconceptions Mediators also face resistance due to widespread misconceptions that mediation reflects weakness or provides inferior justice compared to litigation. Lack of awareness and the adversarial mindset of parties often result in unwilling participation, thereby limiting the scope of meaningful mediation. Thus, mediators in India operate within a fragmented legal and institutional framework marked by procedural ambiguity, low referrals, enforceability concerns and limited awareness. These challenges highlight the need for a comprehensive statutory framework to strengthen mediation and enhance its effectiveness.