Pre-Litigation Mediation under the Mediation Act,2023
- Anchal Yadav
- 6 days ago
- 8 min read
Abstract
India’s judiciary faces a persistent backlog of lakhs of cases, causing significant delays in hearings, wastage of time, resources and money. The evolution of Alternative Dispute Resolution (ADR) mechanism, particularly mediation, has paved the way for fasten, fairer, and more accessible justice. Mediation has been one of the most effective ADR methods- not only because it is quicker but also because it is understandable and collaborative. Even before the Mediation Act,2023. It served as a powerful tool for resolving disputes without prolonged court litigation, where outcomes are uncertain and time-consuming. This paper examines the nature, importance, and evolving role of mediation after the 2023 Act, with a special focus on pre-litigation mediation as the preferred first step in civil and commercial disputes. Drawing from recent judgements, articles and data, it explores the future of mediation and its potential to become more useful and effective for future generation. The study evaluates whether this approach is efficient for significant commercial matters and whether mandatory pre-litigation requirements enhance access to justice or create undue procedural barriers. It also considers potential impacts on equality and the right to speedy trial while highlighting benefits such as reduced case pendency and cost-effective resolution. Recommendation includes public awareness campaigns, enhance mediator training. The paper critiques current implementation challenges and proposes practical solutions to strengthen pre-litigation mediation.
Keywords: Pre-litigation mediation; The Mediation Act,2023; Alternative Dispute Resolution (ADR); Section 12A Commercial Court; Judicial Pendency.
Author Biography
Aanchal Yadav is a final-year Bachelor of Laws (LL. B) student at Shri Ramswaroop Memorial University, Lucknow, Uttar Pradesh. She has a deep academic interest in Alternative Dispute Resolution (ADR), with a specific research focus on the structural evolution of mediation jurisprudence and institutional commercial arbitration framework in India.
Introduction
Imagine two business partners who once trusted each other, are now on the verge of dissolving their partnership due to a contractual breach. In this case usually approaching the court as the remedy, filing suit, years of delays, expensive lawyers’ fees and mental distress. But all this can
be settled with a session between the parties by the neutral mediator who will understand the parties demand and come to the amicable settlement . In current scenario Indian courts are buried under tens of millions of pending cases, so the approach of mediation as been seen has a primary and important tool for fastened justice in matters of commercial and civil which are increasing day by day this paper traces its legal journey, examines key judgement, highlighting its real benefits and challenges and also how can it improve for the better application in India.
Roots of Pre-Litigation Mediation in India
The seeds of mediation in India were sown long before modern statutes, echoing ancient practices like panchayats in village councils. However, formal recognition came with the 1 Code of Civil Procedure (CPC) Amendment in 2002. introducing Section 89 to promote ADR methods, including mediation. The landmark case of 2 Afcons infrastructure LTD. V. Cherian Varkey construction CO. P.LTD (2010) clarified this provision, emphasizing that courts cannot force parties into arbitration but can encourage to go for other methods like Mediation. The real momentum built with the 3 Commercial Courts, Commercial Division and Commercial Appellate Division of High Court act, 2015 amended in 2018 to insert Section 12A. 4 The Mediation Act ,2023 now recognize pre-litigation mediation as voluntary process under Section 5, while retaining mandatory elements for commercial cases.
Pre-Litigation as a Tool for Speedy justice
Pre-litigation mediation refers to a voluntary, agreement -based procedure in which disputing parties collaborate with a neutral facilitator to reach an amicable solution before initiating any
court case or even sending formal legal notices. It differs from litigation, where judge imposes a decision, by allowing parties to select the process and mediator. This leads to way of negotiation and have empathy, often leading to mutually beneficial outcomes rather than win-lose results. It eases judicial overload post 2018, mediation referrals have resolved thousands of cases, freeing benches for complex matters
Wide ranges of cases Covered under mediation Pre-litigation mediation covers a wide range of cases -domestic, commercial, consumer,
property, minor criminal cases amongst others. In disputes relating to family matters, the family courts have been assigned the responsibility to persuade the parties to go or to consider
mediation first.
The Mediation Act, 2023 Section 5 promotes voluntary pre-litigation mediation for civil and commercial disputes, excluding non- compoundable offenses or those against public policy. It introduces online mediation (29) and community mediation to make the act accessible to everyone despite of residence, place creating a mediation friendly society
Evolution of the Legal Framework for Pre-Institution Mediation
Indian legislation does not impose compulsory pre-litigation mediation across all cases. A notable judicial endorsement appeared in Srinivas Rao vs D.A Deepa (2013) 5 SCC 226 where the supreme court highlighted mediation Value in resolving matrimonial cases.
For commercial cases the 9 Commercial Courts Act, 2015 (amended in 2018) introduced Section 12A , requiring pre – institution mediation for suits by giving exceptions in cases urgent relief is sought by the aggrieved party.
The Mediation Act, 2023 now established a unified framework for mediation. In commercial cases, parties submit an application to the District Legal Services Authority (DLSA), which informs the other side and appoints a mediator if both agree. The process must conclude within 3 months, can be extended by two months with the consent of both parties. After the success of mediation process by the mediator gains enforceability under 10 section 74 of the Arbitration and
Conciliation Act ,1996. If no agreement is reached, a non- settlement report is issued, allowing the parties to proceed to court.
This voluntary yet structured approach under the 2023 Act – combined with mandatory elements in specific commercial scenes – strengthen mediations role in promoting efficient, fair and accessible justice while reducing judicial burdens.
Promotion of Pre-litigation Mediation around the globe
Nations globally have enhanced pre -litigation mediation through adopting various mechanism countries like America, Canada and Australia have been promoting the mediation over going for suit at first stage in petty cases. Over 2,500 statutes across these countries support its use, with courts ordering mediation in family, commercial and small claims to fasten the justice and provide interim relief in some cases.
The European Union (EU) has promoted mediation and other ADR techniques during the past two decades in order to improve the bar of justice.
The Need of Good Mediators to ease the process of mediation
As the mediation has been promoted and encouraged by the courts to go over suits, there is an issue of good mediators for successful completion of mediation process. Recent estimates indicate only about 13,000 trained mediators exists nationwide. Even though high court has identified lakhs of mediation friendly cases with some of them already referred. A note by supreme court showed that India needs around 2.5 Lakh well trained legal mediators to fill the gap
The already existing mediators lack some of the quality such as new society thinking as many are retired judges of the courts so there is a need of young trained minds to ensure the new generation problem gets solved There should be proper training for mediators before stepping into the field that quality like good
communication skill, good listener, understanding languages and professionalism
Judicial Interpretation: Important Case Laws
Many case laws have interpretated the outline of mediation as the first tool for justice. In the case of 13 M/S Patil Automation Private Ltd vs Rakheja Engineers Private Limited, (2022) 10 SCC 1). Here the court give the view that the aim of Sec 12A of the Commercial Courts Act is to ensure that before a commercial dispute is filed before the court, the alternative means of dissolution are adopted so that genuine cases come before the courts.
Then another important case of Afcons infrastructure Ltd V. Cherian Varkey Construction Co Ltd (2010, SC) established in the context of section 89 of the Civil Procedure Code, 1908. This case highlighted the importance of Alternative Dispute Resolution (ADR) and encouraged courts to explore mediation. There are many other cases which has strongly emphasizes on the use of acts mentioned in this research paper.
Some exceptions by the court in the matter of Urgent Relief
As this research paper talks about encouraging and going over the mediation , before filing for suits in commercial matters, but in some scenarios it can create barriers to urgent relief , In the case of 14 Novenco Building and Industry AS V. Xero Energy Engineering Solutions ( 2025 INSC 1256 ) 27 OCT 2025 , 15 The two judge bench of Hon’ble Supreme Court held that the IP suits requiring urgent relief are not required to undergo compulsory pre-institution mediation as mandated under Section 12A of the Commercial Courts Act ,2015. The supreme court set aside the high court’s orders and held that in cases where wrong is of such types that it is causing recurring harm to goodwill, reputation and consumer trust, urgency is inherent
Challenges to overcome and Recommendation for future
As the pre-litigation mediation is a great idea to reduce India’s huge court backlog but right now there are some issues arising due to many reasons.
According to recent data like 16 almost 98% cases of pre- litigation mediation request never even start, recent data (2024-25) shows that over 59,568 commercial cases where mediation did not begin at all and success rate is not that higher as very few people actually try or complete it.
Delay in the mediation is causing problems like extra cost with no benefits as those who pay for mediation and if fails making it more expensive for small business or common people. Not enough trained mediators and centers as many districts lack proper mediation offices, trained people, or online options as the quality also differs from place to place Rules and regulation are also confusing as common people are not clear about the law
Recommendation to improve the following problems
1-First of all, there is a need of balanced hybrid system means start with short mandatory information session for everyone to explain the benefits and if it suitable for the parties in different cases, parties must attend and talk in good faith so even if someone misbehave like
wasting court time the court can later punish them.
2- There is a need of better support system like creating more mediation centers in every district, trained thousands more mediators with more special skills for complex matters.
3-Use of online mediation can connect people in villages or abroad to easily accessible. One of the important recommendations is to spread awareness and change mindset by big campaigns on tv, social media, schools and bar associations by the slogan -Mediation as smart and powerful tool not weak. In law colleges mediation and other ADR resolution should be taught for the future young lawyers and advocates.
Conclusion
Pre-litigation mediation in India is now standing at its transformative crossroads- from the part of ADR to becoming a Binding ACT of the whole nation .It now represent a forward – thinking step toward faster , cheaper and more amicable dispute resolution .The act provides a strong
legal foundation by recognizing voluntary pre – litigation mediation for civil and commercial disputes making mediated agreements enforceable like court orders .Even though there are still some hurdles and problems It is improving day by day . Through this research paper what I want to convey is to that pre -litigation mediation is not just an alternative – it’s a vital tool for making justice quicker and accessible in India. By addressing current gaps through practical reforms, training and cultural shifts, it can truly transform the dispute resolution landscape, reduce judicial burden and deliver timely justice to millions.
References:
Afcons infrastructure Ltd. V. Cherian Varkey Construction CO. (P) Ltd. (2010) 8 SCC 24, https://indiankanoon.org/doc/1875345/
Code Of Civil Procedure, 1908 (amended 2002). India Code. https://www.indiacode.nic.in/
Commercial Courts Act,2015 (as amended 2018), India Code. https://www.indiacode.nic.in/
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 https://indiankanoon.org/search/
Mediation Act, 2023, No, 32 of 2023. Gazette of India.
M/S. Patil Automation Private Ltd. V. Rakheja Engineers Private Ltd. (2022) 10 SCC 1. https://indiankanoon.org/doc/164693074/
Ministry of Law and Justice. (2026) pre-institution mediation data
National Judicial Data Grid. (2026). Pendency statistics. https://njdg.ecourts.gov.in/njdg_v3/
Novenco Building and Industry A/S. v. Xero Energy Engineering Solutions Pvt. Ltd, 2025 INSC 1256 (Oct 27, 2025) https://indiankanoon.org/
Surya Kant, J. (2025, September 28). Need of trained mediators in India. The Times of India https://timesofindia.indiatimes.com/city/bhubaneswar/india
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