Mediation Cannot Be Forced Upon Unwilling Party In Civil Suits; Consent Of Both Sides Essential: Bombay High Court

"Mediation contemplated by the Mediation Act is not compulsory but a consensual mediation... mediation cannot be thrusted upon either of the parties," Bombay High Court, in a significant ruling dated May 4, 2026, held that mediation is fundamentally a consensual process and cannot be forced upon a party that opposes it.

A bench of Justice Rajesh S. Patil observed that while courts generally encourage settlements in family disputes, the judicial power to refer a matter for Alternative Dispute Resolution (ADR) under Section 89 of the CPC must respect the voluntary nature of the exercise.

The case involved a dispute between siblings over the specific performance of a 1994 family arrangement. The plaintiffs sought a reference to mediation, which was vehemently opposed by Defendant No. 1, citing previous failed attempts at settlement and the lack of a concrete proposal.

Court Examines Whether Related Parties Can Be Forced Into Mediation

The primary question before the court was whether parties who are closely related should be referred to mediation when one of them is unwilling. The court was also called upon to determine the legislative intent behind the Mediation Act, 2023, and the amended Section 89 of the Code of Civil Procedure (CPC).

Mediation Remains A Voluntary Act Under Civil Procedure Code

The Court analyzed the 1999 and 2023 amendments to Section 89 and Order X Rule 1-A of the CPC. Justice Patil noted that although the 2023 amendment omitted certain procedural steps for the court to formulate settlement terms, it retained the crucial phrase "which may be acceptable to the parties."

Legislative Intent Favors Consensual Over Mandatory Mediation

The bench emphasized that this retention preserves the consensual character of ADR in civil litigation. The Court observed that the legislature intended for the parties to have an active choice in opting for a settlement mode, rather than being subjected to a mandatory judicial decree for mediation.

Mediation Act 2023 Not Mandatory For Civil Suits

The Court delved into the legislative history of the Mediation Act, 2023. It noted that while the initial draft Bill used the word "shall" regarding pre-litigation mediation, the Parliamentary Standing Committee recommended a change. Consequently, Section 5 of the Act now uses the phrase "may voluntarily and with mutual consent."

Court Notes Distinction Between Civil And Commercial Suits

Justice Patil pointed out a critical distinction between ordinary civil suits and commercial suits. While Section 12-A of the Commercial Courts Act, 2015, makes pre-institution mediation compulsory, no such mandate exists for general civil proceedings under the Mediation Act or the CPC.

Mediation Cannot Be Ordered As A Matter Of Course Without Consent

Drawing on the Supreme Court's precedent in Rupa and Co. Ltd. vs. Firhad Hakim (2025), the High Court reiterated that mediation cannot be "thrusted" upon a resisting party. The bench held that even if the court suggests mediation, it cannot proceed if one party remains firm in their opposition, especially when previous attempts have yielded no results.

"Mediation has to be by the consent of both the parties. Mediation cannot be thrusted upon either of the parties."

Absence Of Elements Of Settlement Voids Reference To ADR

The Court observed that for a reference to be made under Section 89 CPC, there must exist "elements of a settlement." In this case, the bench found no such elements, as the plaintiffs had failed to provide a concrete settlement proposal despite being granted time by the Court to do so.

Prior Failed Attempts At Mediation Taken Into Account

The Court noted that the family had already undergone two significant mediation attempts. One was conducted by a senior mediator appointed by the Supreme Court in 2018, and another was attempted through the District Court in Pune. Both attempts had failed to resolve the long-standing litigation.

ADR Should Not Be A Tool For Delay

Referencing the Afcons Infrastructure judgment, the bench warned that ADR processes should not become tools for "unscrupulous litigants" to drag on proceedings. The Court noted the Defendant’s concern that the mediation request was a tactic to delay the hearing of an application filed under Order VII Rule 11 CPC.

"The Court has to first form an opinion that even though one of the parties is opposing mediation, the matter needs to be sent to mediation... this situation has not arisen in the present proceeding."

The Court concluded that there was no possibility of a successful settlement through mediation given the history of the parties and the lack of mutual consent. Justice Patil rejected the plaintiffs' request to refer the matter to mediation and directed that the suit proceed on merits, starting with the Defendant's application for rejection of the plaint.

Date of Decision: 04 May 2026