This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. The views expressed are personal. Readers are encouraged to consult a qualified lawyer or advocate specializing in divorce cases for professional legal guidance.

1. The Jurisdictional Limits of a Litigant’s Choice of Mediation Forum

There is a particular sentence that has become increasingly familiar in my chambers.

“Sir, we want mediation—but not here.”

I usually know what comes next.

“Can we ask the Supreme Court to send the matter to mediation?”

The question is understandable. Matrimonial litigation is intensely personal, and once trust between spouses has disappeared, even the choice of the person sitting across the mediation table can become a matter of considerable importance.

A client may tell me that the Family Court mediation has already failed. Another may say that the local mediator was “not neutral”. Someone else may simply believe that a mediator attached to the Supreme Court will carry greater authority and therefore have a better chance of bringing the parties to a settlement.

There is, of course, a certain logic to the argument.

But the law, as lawyers are occasionally required to remind their clients, does not always follow logic to its most convenient destination.

The Supreme Court is the apex constitutional court of the country. It has an institutional mediation mechanism and has repeatedly referred matrimonial disputes pending before it to the Supreme Court Mediation Centre. But that does not mean that every litigant whose divorce petition is pending before a Family Court can insist upon shifting the mediation from the local court to Delhi.

The answer lies in understanding the difference between the right to seek mediation, the power of a court to refer a dispute to mediation, and the jurisdiction of the Supreme Court to entertain the matter in the first place.

That distinction is more important than it may initially appear.

2. MEDIATION BEGINS WITH SETTLEMENT, NOT JURISDICTION

The modern legal framework governing mediation has become considerably more structured after the enactment of the Mediation Act, 2023.

The legislation expressly promotes mediation, particularly institutional mediation, and provides a statutory framework concerning pre-litigation mediation, court-referred mediation, appointment and replacement of mediators, confidentiality, mediated settlement agreements and their enforcement.

Section 7 of the Mediation Act recognises the power of a court or tribunal to refer parties to mediation.

Section 8 deals with appointment of mediators.

Section 9 is particularly interesting because it recognises the preference of parties in relation to the mediator, subject to the statutory framework.

The Act also provides for replacement of a mediator and addresses conflicts of interest and disclosure.

This is important because it demonstrates that modern mediation law does not treat the identity and neutrality of the mediator as irrelevant.

At the same time, none of these provisions creates a general right in a litigant to choose any mediation centre in India irrespective of the court before which the litigation is pending.

That is where jurisdiction re-enters the discussion.

3. THE FAMILY COURT HAS ITS OWN STATUTORY RESPONSIBILITY

For matrimonial litigation, one cannot overlook the Family Courts Act, 1984.

Section 9 places a positive obligation upon the Family Court to make efforts to assist the parties in arriving at a settlement.

This is not merely a procedural courtesy.

It reflects the legislative philosophy behind the establishment of Family Courts.

A matrimonial court is not intended to function as an ordinary civil court in which the judge simply waits for evidence and eventually pronounces judgment.

The legislation recognises that matrimonial disputes are capable, in appropriate cases, of resolution through reconciliation, counselling and settlement.

The Family Court is therefore not somehow a “lesser” mediation forum merely because it is a local court.

Indeed, it is the court specifically constituted to deal with family disputes.

The fact that a matter is pending before a Family Court is therefore highly relevant when a party asks:

“Why can’t we simply go to the Supreme Court Mediation Centre?”

The answer is that the mediation mechanism ordinarily follows the litigation unless there is a legally recognised reason for intervention by a higher court.

4. THE SUPREME COURT CERTAINLY CAN REFER MATRIMONIAL DISPUTES TO ITS MEDIATION CENTRE

This needs to be stated clearly.

There is nothing legally unusual about the Supreme Court referring a matrimonial dispute pending before it to the Supreme Court Mediation Centre.

The Court has done so repeatedly.

For example, in matrimonial proceedings before the Supreme Court, the parties have jointly requested mediation and the Court has referred the dispute to the Supreme Court Mediation Centre, sometimes directing the initial interaction to take place virtually.

In another matter, Tanu Gupta v. Achin Gupta, the parties expressed willingness to attempt mediation in their matrimonial dispute and the Supreme Court referred both parties to its Mediation Centre.

There are also cases where the Supreme Court has paused other proceedings while mediation was being undertaken, thereby giving the settlement process a meaningful opportunity to succeed.

The current practice therefore makes one thing perfectly clear:

The Supreme Court Mediation Centre is not merely theoretical. It is an active institutional mechanism through which the Supreme Court facilitates settlement in appropriate cases.

But that still leaves the more difficult question.

5. CAN A FAMILY COURT LITIGANT DEMAND SUPREME COURT MEDIATION?

In my view, the answer is not as a matter of right.

A party can certainly make such a request.

The court can consider the request.

And in an appropriate case, particularly where proceedings have reached the Supreme Court, the Supreme Court may itself consider referring the dispute to its Mediation Centre.

But the mere preference of one litigant for a particular mediation centre does not automatically confer jurisdiction upon the Supreme Court.

This is where the distinction between request and entitlement becomes crucial.

A litigant can request.

A court may exercise discretion.

But the litigant cannot ordinarily convert that request into a jurisdictional right.

6. WHY JURISDICTION MATTERS

Let us take a simple example.

A wife files a divorce petition before the Family Court in Pune.

The husband appears.

The Family Court refers the parties to mediation.

The wife does not like the mediator.

She says:

“I want the Supreme Court Mediation Centre instead.”

Can she simply approach the Supreme Court and ask it to take over the mediation?

Ordinarily, no.

The Supreme Court does not become seized of the matrimonial dispute merely because one party prefers a different mediation forum.

There must be a proper legal basis for the Supreme Court to exercise jurisdiction.

That basis may arise because an appeal or other proceeding is pending before the Supreme Court.

It may arise through a transfer petition.

It may arise through special leave jurisdiction.

It may arise in another constitutionally or statutorily recognised proceeding.

But mediation preference by itself is not a substitute for jurisdiction.

7. ARTICLE 136 IS DISCRETIONARY—NOT AN INVITATION TO BYPASS THE HIERARCHY

Article 136 of the Constitution gives the Supreme Court a very wide discretionary power to grant special leave to appeal from judgments, decrees, determinations, sentences or orders of courts and tribunals.

It is extraordinary jurisdiction.

It is not an ordinary appellate stage through which every matrimonial dispute must eventually pass.

A litigant cannot reasonably say:

“My Family Court mediation is inconvenient, therefore I should go directly to the Supreme Court.”

The judicial hierarchy exists for a reason.

The Family Court has jurisdiction over the matrimonial dispute.

The High Court ordinarily exercises appellate or supervisory jurisdiction in accordance with law.

The Supreme Court exercises its constitutional and appellate jurisdiction within the limits prescribed by the Constitution and relevant statutes.

Mediation cannot be used as a procedural vehicle to erase that structure.

8. WHAT ABOUT ARTICLE 142?

This is where the discussion becomes more interesting.

Article 142 empowers the Supreme Court to make such order as is necessary for doing complete justice in any cause or matter pending before it.

The expression that deserves attention is:

“pending before it.”

Article 142 is extraordinarily wide.

But it is not jurisdiction without a proceeding.

The Supreme Court must have a matter before it in which the constitutional power can appropriately be exercised.

This distinction became particularly important in matrimonial cases following the Constitution Bench decision in Shilpa Sailesh v. Varun Sreenivasan, (2023) 3 SCC 1.

The Constitution Bench recognised the Supreme Court’s power under Article 142, in appropriate circumstances, to dissolve a marriage on the ground of irretrievable breakdown even where the statutory grounds under the Hindu Marriage Act are not independently established in the same manner.

The Court also laid down considerations that should guide the exercise of that extraordinary power.

The significance of Shilpa Sailesh is not merely that the Supreme Court can dissolve a broken marriage.

It demonstrates something broader:

Article 142 permits the Supreme Court, in a matter properly before it, to fashion relief necessary to do complete justice.

It does not mean that every litigant can bypass the statutory and jurisdictional structure merely by invoking the phrase “complete justice”.

9. A FASCINATING DEVELOPMENT: MEDIATION CAN FAIL EVEN BEFORE THE SUPREME COURT

There is another misconception that deserves to be dispelled.

Some litigants believe that if a matter reaches the Supreme Court Mediation Centre, settlement becomes almost inevitable.

It does not.

Mediation is not magic.

The Supreme Court itself has dealt with cases in which mediation before its Mediation Centre did not produce a settlement. In a recent Supreme Court judgment, the Court recorded that mediation had failed despite its efforts and proceeded, in the circumstances of that case, to consider whether the marital relationship had irretrievably broken down and whether Article 142 should be exercised.

This is an important reminder.

The prestige of the institution cannot manufacture consent.

A mediator can create an environment for settlement.

A mediator can identify interests.

A mediator can help parties move away from positions.

But the final decision to settle remains with the parties.

That is the essence of mediation.

10. A SUPREME COURT MEDIATION IS NOT NECESSARILY “BETTER” THAN LOCAL MEDIATION

This is perhaps the most uncomfortable proposition for a client who has already decided that Delhi must be better.

A mediator’s effectiveness does not necessarily depend upon the constitutional status of the court with which the mediation centre is associated.

A good Family Court mediator can sometimes achieve in two hours what months of litigation could not.

Conversely, an extremely difficult matrimonial dispute may remain unresolved even before the Supreme Court’s mediation mechanism.

The variables are human.

Trust.

Timing.

Financial expectations.

Children.

Family pressure.

Emotional exhaustion.

The willingness to compromise.

And, occasionally, the simple realisation that neither party is prepared to give the other the satisfaction of settling.

The address of the mediation centre is only one variable.

11. WHAT IF THE LOCAL MEDIATION HAS GENUINELY FAILED?

Here the position becomes more nuanced.

Failure of one mediation does not necessarily mean that every subsequent mediation will fail.

Nor does it mean that a litigant must simply surrender to years of litigation.

The Mediation Act itself provides a framework concerning the appointment and replacement of mediators, conflicts of interest and termination of mediation.

Therefore, if there is a genuine concern regarding neutrality or suitability, the appropriate remedy may be to seek replacement of the mediator or referral to another appropriate mediation institution, depending upon the circumstances and applicable rules.

A party may also place before the court the reasons why another mediation process may be more productive.

But there is a significant difference between saying:

“The present mediation process has failed, and we seek another neutral forum.”

and saying:

“We want the Supreme Court because we believe its mediator will be more powerful.”

The first is a legitimate procedural concern.

The second misunderstands mediation.

A mediator has no power to compel settlement.

12. CAN THE PARTIES THEMSELVES CHOOSE THE MEDIATOR?

The Mediation Act recognises party preference in the appointment of a mediator, subject to the statutory framework.

This is an important development in the law.

Mediation works best when the participants have confidence in the neutrality and competence of the person facilitating the process.

But party preference operates within an institutional framework.

It does not mean that parties acquire an unrestricted right to choose any mediation institution or court in the country.

There must still be a legally appropriate route through which the dispute reaches that institution.

13. TRANSFER PETITIONS ARE A DIFFERENT MATTER

In matrimonial litigation, another question frequently arises:

“Can I approach the Supreme Court for transfer and then seek mediation?”

That is a substantially different proposition.

Section 25 of the Code of Civil Procedure, 1908 provides for transfer of suits, appeals and other proceedings from one High Court or civil court in one State to another High Court or civil court in another State in appropriate circumstances.

The Supreme Court’s transfer jurisdiction is therefore not itself a mediation jurisdiction.

A litigant may seek transfer for reasons recognised by law.

If the matter comes before the Supreme Court in such proceedings, the Court may consider mediation as an additional means of resolving the underlying matrimonial dispute.

The two concepts should not be conflated.

Transfer is about forum.

Mediation is about settlement.

They may sometimes appear together in the same proceeding, but they are legally distinct.

14. THE SUPREME COURT’S OWN ORDERS DEMONSTRATE THE DISTINCTION

The Supreme Court’s case records provide useful practical illustrations.

In Rashmi Srivastava v. Abhishek Srivastava, the parties before the Supreme Court expressed willingness to explore settlement and sought mediation at the Family Court Mediation Centre in Pune. The Supreme Court referred the matter to that local mediation centre and even permitted participation through video conferencing if physical appearance was difficult.

This is an instructive example.

The matter was before the Supreme Court.

Yet the Court did not say:

“Since this is before us, mediation must necessarily take place in Delhi.”

Instead, it referred the parties to the mediation centre that was convenient to them.

That tells us something important about the philosophy of mediation.

The objective is settlement—not institutional grandeur.

15. CONVENIENCE CAN MATTER

Modern mediation has also changed because of technology.

Virtual mediation can eliminate the need for parties to travel across the country.

This is particularly important in matrimonial disputes.

Imagine a husband living in Pune, a wife living in Bengaluru, and a child studying in Singapore.

Insisting that everyone physically assemble in Delhi for every mediation sitting may add cost without necessarily improving the possibility of settlement.

The Supreme Court itself has, in appropriate cases, permitted initial appearances before its Mediation Centre to take place virtually and has made arrangements concerning travel where personal presence was subsequently considered necessary.

The modern question is therefore no longer simply:

“Which city?”

It is:

“Which mediation process is most likely to produce a fair, informed and workable settlement?”

16. WHAT SHOULD A LAWYER ACTUALLY ASK FOR?

If I were appearing for a client in such a situation, I would avoid framing the request as:

“My client has a right to Supreme Court mediation.”

That proposition is too broad.

I would instead place the circumstances before the court.

For example:

1. the parties have expressed a genuine willingness to settle;
2. previous mediation has failed;

• there is a reasonable apprehension that the present mediation process is no longer productive;

1. the dispute is already pending before the Supreme Court;
2. multiple proceedings are pending in different jurisdictions;
3. the Supreme Court’s intervention may facilitate a comprehensive settlement;

• virtual mediation may be more convenient;
• or there are exceptional circumstances justifying a different mediation arrangement.

The court can then exercise its discretion on the basis of the facts.

That is a much stronger legal position.

17. THE REAL ADVANTAGE OF SUPREME COURT MEDIATION

There is, however, something unique about mediation once a matrimonial dispute reaches the Supreme Court.

The parties may have several proceedings pending across different courts.

A matrimonial petition may be pending in one State.

A maintenance case in another.

A criminal complaint somewhere else.

A transfer petition may be pending before the Supreme Court.

An appeal may also be pending.

In such circumstances, the Supreme Court can sometimes provide a forum from which a comprehensive settlement can be negotiated.

The Court’s ability to deal with the broader litigation before it can make mediation particularly effective.

But again, this is because the dispute is properly before the Supreme Court—not because the Supreme Court Mediation Centre is inherently superior to every other mediation centre.

18. THE SETTLEMENT MUST BE DRAFTED AS CAREFULLY AS THE PLEADINGS

There is another practical lesson that I have learnt over the years.

Lawyers sometimes become so enthusiastic about achieving settlement that they forget the importance of drafting it properly.

That is dangerous.

1. A matrimonial settlement may have to address:
   Divorce
2. How and when will the decree be obtained?
   Money
3. What is the total settlement amount? When will it be paid? Through what mechanism?
   Maintenance
4. What claims are being settled?
   Children
5. Who will have custody? What are the access arrangements? Who pays educational and medical expenses?
   Property
6. Are there claims concerning jointly owned or individually owned assets?
   Criminal proceedings
7. Which proceedings are to be withdrawn, compounded, quashed or otherwise dealt with, and by whom?
   Future claims
8. What exactly is being settled and what, if anything, remains open?
   A settlement agreement is not merely a declaration that “all disputes are settled”.

It is a legal instrument.

Poor drafting can turn a successful mediation into the next round of litigation.

19. MEDIATION CANNOT OVERRIDE THE LAW

This becomes particularly important where the settlement involves matters affecting third-party rights, children, criminal proceedings or statutory obligations.

A mediator cannot grant relief that only a competent court can grant.

Parties cannot, merely by signing a settlement, confer jurisdiction upon a court that otherwise lacks it.

And a settlement cannot simply erase statutory requirements.

Mediation operates within the law.

It does not operate above it.

That is precisely why the Mediation Act provides a structured regime for mediated settlement agreements, confidentiality, enforcement and challenge.

20. SO, CAN YOU REQUEST SUPREME COURT MEDIATION?

After all the legal discussion, the answer can be put quite simply.

Yes, you can request it in an appropriate case.

But:

No, you do not ordinarily have an absolute right to insist that a matrimonial dispute pending before a Family Court must be mediated by the Supreme Court Mediation Centre.

If the dispute is already pending before the Supreme Court, a request for referral to the Supreme Court Mediation Centre is entirely realistic and is consistent with the Court’s established practice in appropriate matrimonial matters.

If the case is pending only before the Family Court, the proper starting point is ordinarily the mediation and settlement mechanism available within that judicial framework.

If there are exceptional circumstances, the lawyer should identify the precise jurisdictional route by which Supreme Court intervention can properly be invoked.

That is the legally sustainable way to approach the issue.

21. THE FINAL WORD: PRESTIGE IS NOT A SUBSTITUTE FOR JUSTICE

After many years in the Family Courts and High Courts, I have learnt that matrimonial litigation has a peculiar way of making everyone believe that the answer lies in finding a more powerful courtroom.

When the Family Court becomes frustrating, the client wants the High Court.

When the High Court becomes frustrating, the Supreme Court seems irresistible.

And once the matter reaches the Supreme Court, someone will inevitably ask whether there is an even more powerful institution somewhere beyond the Supreme Court.

Fortunately, the Constitution does not provide one.

But the deeper lesson is that justice is not made better merely by moving it to a more prestigious building.

Mediation succeeds because people are prepared to listen, compromise and accept a solution that may not resemble the victory they originally imagined.

The Supreme Court Mediation Centre is an important institution. Its role in facilitating settlement in matrimonial disputes pending before the Supreme Court is significant. But its constitutional prestige should never be confused with a power to compel settlement.

Nor should the ordinary Family Court mediation process be dismissed merely because it happens closer to home.

The rule of law requires something more disciplined.

It requires us to respect jurisdiction while remaining open to settlement.

It requires courts to encourage mediation without converting it into coercion.

It requires lawyers to advise clients realistically rather than promising that a different courtroom will produce a different marriage.

And perhaps most importantly, it requires us to remember that mediation is not about finding the court with the greatest authority; it is about finding a process in which the parties can rediscover enough trust to make an agreement.

Sometimes that happens in a mediation room attached to a Family Court.

Sometimes it happens before a High Court mediation centre.

And sometimes, when the matter has properly reached the Supreme Court, it happens under the auspices of the Supreme Court Mediation Centre.

The address may change.

The principle does not.

Justice ultimately depends not upon how high we travel in the judicial hierarchy, but upon whether the law gives us a fair opportunity to resolve the dispute before us.

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