Consent is King: Why the Bombay High Court Refused to Force Mediation in a High-Stakes Family Dispute Despite the Global Push for Alternative Dispute Resolution.
In the corridors of Indian courtrooms, there is a long-standing proverb: "A lean settlement is better than a fat lawsuit." This is especially true in family disputes, where the law often acts as a blunt instrument for delicate emotional fractures. However, a recent judgment by the Bombay High Court in the high-profile Kalyani family dispute offers a sobering reality check. It tackles a fundamental question: Can a court force parties into mediation when the bridge of trust has not just been scorched, but entirely dismantled?
The case involved a suit for the specific performance of a 1994 family arrangement. While the court initially suggested mediation—a standard reflex in family matters—the defendant staunchly refused, citing a history of failed attempts and alleged bad-faith tactics by the plaintiffs. The resulting judgment is a masterclass in the evolving landscape of Alternative Dispute Resolution (ADR) in India.
1. The Death of "Mandatory" Mediation in Civil Suits
For years, there has been a growing narrative that mediation is becoming compulsory. However, the Court clarified that in ordinary civil suits (unlike specific commercial disputes), mediation remains a consensual journey. The judge noted that while courts should encourage settlement, they cannot "thrust" mediation upon an unwilling party. This protects the integrity of the process; mediation by coercion is merely a stay of execution for a trial that is inevitable.
2. The "Commercial" vs. "Civil" Divide
One of the most insightful parts of the judgment is the distinction drawn between the Commercial Courts Act, 2015, and the Code of Civil Procedure (CPC). Under Section 12-A of the Commercial Courts Act, pre-institution mediation is indeed a mandatory hurdle. However, the Court observed that no such "compulsion" has been introduced for general civil suits. This creates a dual-track system in India where the nature of the dispute—business versus private—dictates the level of autonomy a litigant has over the resolution method.
3. Legislative Intent: From "Shall" to "May"
The Court performed a deep dive into the legislative history of the Mediation Act, 2023. Interestingly, the original Draft Bill used the word "shall" regarding pre-litigation mediation. However, the Parliamentary Standing Committee replaced this with "may voluntarily and with mutual consent".
"After considering the Draft Bill and the Standing Committee’s Report, it is clear that legislature in its wisdom wanted mediation to be kept as a voluntary act with consent of the parties and not something which is mandatory in nature."
This analysis is crucial for practitioners. It signals that despite the global push for ADR, the Indian legislature has consciously chosen to preserve the "voluntary" soul of mediation.
4. The "Element of Settlement" Test
Under the newly amended Section 89 of the CPC, a court’s power to refer a matter to ADR is predicated on the existence of "elements of settlement". The Court illustrated this with a brilliant hypothetical: if one party makes an offer and the other is "very close" to accepting, the court can step in to "bridge the gap". But where the parties are miles apart and previous attempts at the highest levels (including the Supreme Court) have failed, forcing them back into a room is a futile exercise in judicial optimism.
5. Mediation as a Tool for Delay
The judgment revives a warning from the landmark Afcons Infrastructure case. ADR should not become a weapon for "unscrupulous litigants" to drag out proceedings. In this case, the defendant argued that the plaintiffs were using the suggestion of mediation to generate media headlines while simultaneously pursuing aggressive litigation in other forums. The Court recognized that when mediation is used as a tactical smokescreen rather than a genuine olive branch, the court must step back and allow the matter to proceed on merits.
"Under no circumstances the court should allow the ADR process to become a tool in the hands of an unscrupulous litigant intent upon dragging on the proceedings."
Conclusion
This judgment serves as a vital reminder that while mediation is a preferred path, it is not a forced march. For a settlement to be meaningful, there must be a spark of possibility. By refusing to mandate mediation in a climate of total distrust, the Bombay High Court has upheld the principle that the right to a trial is just as fundamental as the encouragement to settle. It is a balanced, pragmatic view of modern Indian litigation.
Case: SUGANDHA HITEMATH v. BABASAHEB NEELKANTH KALYANI
Law: Code of Civil Procedure, Mediation Act, Commercial Courts Act.
Citation: 2026:BHC-OS:11440
Decision Date: 04-05-2026