Supreme Court judge Justice B V Nagarathna on Saturday stressed the need for a dedicated forum to examine complaints of misconduct and said courts are often reluctant to remove arbitrators, as they are former judges, chief justices or people in higher positions.
Speaking at the 5th International Conference of the Indian Council of Arbitration on ‘Arbitration in the Age of Globalization’, during the technical session titled ‘Navigating the Swamp of Alternative Dispute Resolution: Coordinating Arbitration and Mediation’, the judge stressed that arbitrators and mediators must remain aware that, as alternatives to the court system, they must maintain high standards of integrity and fairness throughout the process.
“We have many advantages, but one of its disadvantages is the behavior of the arbitrators or mediators, sometimes to the point of saying that there is a lack of confidence, bias or misconduct. And it is very difficult to change the arbitrator in this matter. So, by applying, the arbitrators and mediators…have an awareness that they are an alternative to the court system. This means that they are equal to arbitration, but it is not an arbitrator. It is an alternative dispute resolution mechanism,” the judge said. The standards of arbitrators and mediators must be very high, they must maintain this throughout the proceedings, and there can be no reflection of bias…”
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She added: “Of course, there is no forum per se where a complaint against misconduct of an arbitrator can be made except before the court, and the courts are very wary of changing the arbitrator in this way, because many of the arbitrators… are former judges, chief justices, and already hold higher positions… but it all depends on the standard, and the arbitrators and mediators must meet.”
In her speech, the judge also called for the establishment of a mature legal system that supports a diverse and integrated dispute resolution framework, where arbitration, mediation and negotiation work together to provide effective and context-sensitive solutions.
The judge added: “But even as ADR has revolutionized the dispute resolution landscape, the practical challenges also deserve recognition. Issues relating to the enforceability of awards, delays, the high costs of arbitration, the need for well-trained arbitrators, a lack of confidence in arbitrators and mediators, and the continued adversarial mentality of the parties, and sometimes their lawyers, all remind us that ADR must continually evolve to remain effective and credible.”
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Justice Nagaratna noted that this is not one ideal method, but rather a “range of methods” that can be applied to a case, each of which is appropriate for different contexts and stages of dispute resolution.
“The challenge is to ensure that these mechanisms are not limited to mere formalities, but are organized and implemented in a way that maintains their core objectives of efficiency, fairness and finality,” she said.
The judge also raised concerns over the delay in notification of key provisions of the Mediation Act, 2023, including the Constitution of the Indian Mediation Council, observing that inaction has forced reliance on diverse mediation centers across various states and union territories.
“In India, the enactment of the Mediation Act, 2023 is an important legislative step in this direction, as it seeks to institutionalize mediation and strengthen its role in resolving commercial disputes. But I must admit that it really needs to take off like this, while we have these structures in the form of legislation…implementing the said Act as many provisions are yet to be notified. The Mediation Council of India is not yet constituted and, therefore, we have to rely on various mediation centers in various states and union territories,” she said.
