Resolving Commercial Disputes in India: Focus on ‘Mediation’ as an Effective Alternative ‘Towards Ease of Doing Business’

Abstract

Disputes are inevitable in commercial transactions and this gets further complicated when it comes to cross boundary commercial transactions. Mostly it has been an experience that the parties to resolve commercial disputes including an international commercial transaction dispute utilize arbitration. Institutions like ICC, LCIA and ICSID have evolved and are handling the matters relating to international commercial disputes. While one may say that, the international dispute settlement mechanism in commercial matters is invariably ‘arbitration’, as parties do not prefer to choose litigation due to its inherent lacunae of delay and costs, the new methods or alternate methods of dispute settlement are still evolving. Mediation is one of those methods and has proven itself to be unique and quite successful settlement process when conducted by a skilled mediator. As regards its utility, mediation is more useful compared to arbitration because of its principle of parties themselves coming to a settlement and ‘without prejudice’ process. However, the parties to a commercial dispute or the international commercial transaction to subject their disputes for settlement have not accepted mediation that readily. The present paper would explore the reasons behind that by examining the existing literature and efforts put in by the countries in promoting mediation as a method of settlement of commercial disputes. It would be explored whether ‘mediation’ may emerge as an important alternative to the dispute settlement mechanism for settling commercial disputes.