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Finally, it is unclear what impact the specific terms defined by the judge will have on a
subsequent settlement through mediation or other techniques. If the settlement
discussions lead the parties away from or beyond the specified terms, they may worry
about the enforceability of the settlement agreement. In contrast, if they constrain
their negotiations to the specified terms, the likelihood of settlement may be
significantly diminished. Again, instead of the judicial conciliation process contemplated
by Section 89, treating Order X (1a) as an independent provision for triggering Section
89 ADR options (a-d) may provide a quicker, cleaner, or more versatile bridge to
mediation and other Section 89 alternatives that promote settlement.

C. Adaptation Concerns

In addition to these concerns, many lawyers and judges wonder about the applicability
of these techniques to the specific nature of the diverse Indian caseload. Will
mediation work effectively beyond commercial disputes in family matters, property
partitions, landlord tenant, industrial disputes, cases containing elements of a crime,
and as noted claims against the government? Theoretically, mediation may work very
effectively to deal with the complex social relationships that make formal trial so
difficult. Its reliance on orality may be better suited for the undereducated litigant or
the litigant that does not speak the language used in the court proceedings. Mediation
may be able to plow beneath the surface of frequently vexatious litgations by
addressing the underlying conflicts. Mutual gains and distributional bargaining
techniques may help to resolve partition cases. Integrative negotiation (including
investments by those not engaged in the dispute) in landlord-tenant cases may allow
for reconstruction and expansion of currently limited space. Deeply embedding
mediation in the community may alleviate underlying causes of conflict and even some
forms of criminal activity (e.g., assault). Notwithstanding the theoretical benefits in
these applied contexts, however, these questions cannot be answered in the abstract.
Mediation must be tried and tested, lessons learned, and adjustments made. In a
phrase, the proof will be in the pudding, and early signs of mediation practice in
Ahmedabad, Mumbai, and Chennai indicate early success in many of these important
areas of legal conflict.

D. Building Capacity: Next Steps

Naturally, the foregoing sketch of issues is far from exhaustive. A number of
implementation questions will be raised and addressed: how to make mediation
economically desirable, how to cultivate a larger number of mediators available to the
courts, how to promote and improve educational exposure and training methodologies
31
throughout the country, including those under the direction of the High Courts. These
capacity-building issues also demand attention and intellectual investment.

31 See Rule 7, Consultation Paper on ADR and Mediation Rules, supra note 3, at 5.

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