MAINSTREAMING OF MEDIATION: FOCUS ON RESOLVING COMMERCIAL

DISPUTES IN INDIA

Abstract
Disputes in commercial transactions are inevitable and this further gets complicated when it comes to
commercial transactions related to cross boundary. Mostly it has been observed that the parties to
resolve commercial disputes including an international commercial transaction dispute utilize
arbitration. Institutions like ICC, LCIA and ICSID have evolved with time and are handling the
matters relating to international commercial disputes. While one can say that the international dispute
settlement mechanism in commercial matters is ‘arbitration’, as parties do not prefer to choose
litigation over arbitration due to its inherent lacunae of delay and cost, the new methods or alternate
methods of dispute settlement are still evolving. Mediation can be called 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 considered 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 dispute whether it be commercial dispute or the international commercial
transaction have not accepted mediation that readily for settlement. The present research 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 further
explored whether ‘mediation’ may emerge as an important alternative to the dispute settlement
mechanism for settling commercial disputes.