The Mediation Act, 2023 - A Legislative Perspective On India’s Evolving ADR Framework
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Category: Arbitration & ADR
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THE MEDIATION ACT, 2023: A LEGISLATIVE
PERSPECTIVE ON INDIA’S EVOLVING ADR FRAMEWORK
Namitha Udayan & Mohammed Imtiaz Iqhbal, B.A. LL.B., Government Law College, Thiruvananthapuram, Kerala.
ABSTRACT
The concept of Alternative Dispute Resolution (ADR) has a long history in India, dating back to ancient times. The traditional dispute resolution methods, such as panchayats and family elders mediating conflicts, were an early form of ADR. The Mediation Act, 2023, was introduced to address the unique needs and potential of mediation, distinguishing it from the frameworks provided by the Arbitration and Conciliation Act, 1996. While the 1996 Act focuses primarily on arbitration and conciliation, it did not comprehensively define or regulate mediation. The new Act provides a dedicated legal framework with clear definitions, structured procedures, and specific guidelines for mediation. This ensures a robust and effective process, reinforcing the binding nature of mediation settlements by giving them the same status as court decrees.
The Mediation Act is a vital development in the field of ADR. Mediation has added leverage to dispute redressal in several countries. India has significantly enhanced its mediation practices through collaborations with international organizations, aligning with global standards to improve dispute resolution. Key partnerships include adopting elements of the UNCITRAL Model Law, signing the Singapore Convention on Mediation, and engaging with the World Bank for regulatory reforms. Effective dispute resolution is a constant necessity. As society evolves, the systems for resolving disputes must also adapt. Alternative dispute resolution (ADR) offers an efficient method, serving as an alternative to litigation with less hassle. Arbitration and mediation are two effective methods of dispute settlement in ADR.
The paper will cover topics ranging from the importance of ADR mechanisms to the challenges of the Mediation Act, 2023, with recommendations to improve the applicability of the Act.
I.
Introduction to Alternate Dispute Resolution Mechanisms in India “India has more than 40 million cases pending in lower courts, we have 20 judges per Million population which is highly inadequate to deal with the rising trend of litigation”: - N. V. Ramana, Former Chief Justice of India1. The concept of dispute resolution has a long history in India, dating back to ancient times. The traditional dispute resolution methods, such as panchayats and the system of family elders mediating conflicts, were an early form of ADR. The modern framework of ADR in India began to take shape during British colonial rule. The Arbitration Act of 1899 and subsequent legislation laid the groundwork for the current ADR mechanisms.
Section 89(1) of the Code of Civil Procedure, 1908, serves as a key provision enabling courts to refer parties to alternative dispute resolution (ADR) mechanisms, such as arbitration, conciliation, mediation, or judicial settlement including Lok Adalats, whenever a settlement seems possible, thereby promoting amicable resolution outside the formal litigation process. Recognizing the need to reduce court burdens and speedy redressal of disputes, the Indian government codified various ADR methods to formalise their use. The methods, as mentioned under the Section, are:
1. Arbitration
Arbitration is a method of resolving disputes in which the parties involved agree to have one or more neutral arbitrators make a final and binding decision. The procedure starts when the parties consent to arbitration, choose an arbitrator, and proceed with hearings during which they present their evidence and arguments. The arbitrator then delivers a final decision called an award, which is legally binding on the parties. Arbitration offers a binding resolution without court intervention, reducing court backlogs and providing quicker, specialised resolutions. The process is regulated by the Arbitration and Conciliation Act, 1996.
1 Reuters, India Has Court Backlog of 40 Million Cases, Chief Justice Says, REUTERS (Apr. 30, 2022),
https://www.reuters.com/world/india/india-has-court-backlog-40-million-cases-chief-justice-says-2022-04-30/.
2. Conciliation
Conciliation is a non-binding process where a conciliator assists parties in reaching a mutually agreeable settlement. The process starts with either party inviting the other to conciliate, followed by the appointment of a neutral conciliator. The conciliator then meets with the parties separately and together to facilitate discussions and help them reach an agreement. If an agreement is reached, it is recorded and becomes binding. Conciliation encourages amicable settlements and preserves relationships, often used in commercial and employment disputes. It is also governed by the Arbitration and Conciliation Act, 1996, ensuring a structured and voluntary process.
3. Mediation
Mediation is a voluntary method in which a neutral third party, called a mediator, assists the parties in reaching a mutually acceptable agreement. It begins with the parties’ consent to mediation and then moves to choosing an impartial mediator, and engaging in sessions where the mediator guides discussions and helps facilitate negotiations. If an agreement is reached, it is documented and can become binding. Mediation offers a flexible, confidential, and cost-effective method for resolving disputes without the formality of court proceedings. The Mediation Act, 2023, formalizes this process in India, enhancing its viability for civil and commercial matters.
4. Judicial Settlements and Lok Adalats
Judicial settlements involve judges facilitating settlements between parties, while Lok Adalats are informal courts that resolve disputes through conciliation and compromise. The process includes courts referring cases to judicial settlement or Lok Adalats, where judges or Lok Adalat members facilitate negotiations and conciliation. The decisions reached in these settings are binding and have the status of a civil court decree. Judicial settlements and Lok Adalats help reduce the litigation load on courts and provide quicker resolutions. Lok Adalats, governed by the Legal Services Authorities Act, 1987, are particularly effective in disposing of bulk, simple cases. II.
Analysis of the Arbitration and Conciliation Act, 1996 The Arbitration and Conciliation Act, 1996, was enacted to consolidate and amend the law
relating to domestic arbitration, international commercial arbitration, and enforcement of foreign arbitral awards2. The Act also establishes the legal framework for conciliation and is modeled on the UNCITRAL Model Law on International Commercial Arbitration of 1985 and the UNCITRAL Conciliation Rules of 1980. Its main objective is to encourage the resolution of disputes outside of the court system, which helps reduce the judiciary’s caseload and speeds up dispute settlement. The Arbitration and Conciliation Act, 1996, is organized into four Parts: Arbitration, Enforcement of Certain Foreign Awards, Conciliation, and Supplementary Provisions, and it includes seven Schedules. Some of the key provisions of the Act include:
1. Reduced Court Intervention: Section 5 of the Act limits judicial interference in
arbitration matters, promoting arbitration autonomy.
2. Arbitral tribunal's Jurisdiction: Section 16 allows the arbitral tribunal to rule on its
own jurisdiction, including objections to the arbitration agreement's existence or validity, thereby reducing preliminary court litigation over jurisdictional issues.
3. Appointment of arbitrators and conduct of arbitral proceedings: The Arbitration
and Conciliation Act, 1996, under Section 11, provides a mechanism for appointing arbitrators where parties can agree on a procedure, but in the absence of such an agreement, the Chief Justice or a designated authority can appoint the arbitrator(s), streamlining the process and avoiding delays. Section 19 empowers the arbitral tribunal to manage the proceedings as it deems fit, allowing it to decide on the admissibility, relevance, materiality, and weight of evidence, thereby promoting flexibility and efficiency in the arbitration process.
4. Arbitral awards and its enforcement: The Arbitration and Conciliation Act, 1996,
safeguards the finality and enforceability of arbitral awards through key provisions. Section 31 mandates that the award must be in writing, signed by the arbitrators, and include reasons unless the parties agree otherwise or the award is based on terms agreed under Section 30. Section 34 limits the grounds for setting aside an award to specific circumstances such as incapacity of a party, invalid arbitration agreement, lack of
2 Arbitration and Conciliation Act, No. 26 of 1996 (India).
proper notice, or the tribunal exceeding its authority, thereby restricting judicial interference. Section 36 affirms that an arbitral award is enforceable as a court decree, highlighting its binding effect and ease of enforcement.
5. Conciliation Provisions: Part III of the Act from Sections 61 to 81, lays out
conciliation provisions, covering the initiation, appointment, and duties of conciliators. Section 67 outlines the conciliator's role in facilitating settlements, while Section 73 establishes settlement agreements with the same legal standing as arbitral awards. Sections 75 and 76 stress confidentiality and voluntary participation, fostering a flexible and effective dispute resolution process. The Arbitration and Conciliation Act, 1996, was introduced to establish a robust legal framework for resolving disputes by arbitration and conciliation. Its primary objectives include:
1. Enhance Efficiency: By providing a clear legal structure and limiting court intervention,
the Act aims to make arbitration and conciliation faster and more efficient.
2. Promote Alternative Dispute Resolution: Encouraging ADR methods as effective
alternatives to traditional litigation aims to reduce the strain on the judicial system.
3. Attract Foreign Investment: Aligning Indian arbitration laws with international
standards makes India a more attractive destination for foreign investments, ensuring effective and fair resolution of commercial disputes. III.
Analysis of the Mediation Act 2023 The Mediation Act, 2023, was introduced to address the unique needs and potential of mediation, distinguishing it from the frameworks provided by the Arbitration and Conciliation Act, 1996. While the 1996 Act focuses primarily on arbitration and conciliation, it did not comprehensively define or regulate mediation. The new Act provides a dedicated legal framework with clear definitions, structured procedures, and specific guidelines for mediation. This ensures a robust and effective process, reinforcing the binding nature of mediation settlements by giving them the same status as court decrees. The Act emphasises advocates for pre-litigation mediation to reduce court case inflow,
promotes the training and accreditation of mediators to ensure quality and credibility, and establishes mediation institutions for structural support and standardisation. Additionally, it strengthens confidentiality provisions and ensures mediator impartiality, aligning with international best practices and positioning India as a global hub for mediation. The Act provides the groundwork for effective dispute resolution through a system that assures speedy redressal while reducing the burden of cases on the judiciary.
A. The Mediation Bill 2021
The Mediation Bill 2021, which proposed various methods to systematise Mediation in India was introduced in the Rajya Sabha on 20th December 2021. The Bill was referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for review on 21st December 2021. The Committee initiated deliberations and sought the suggestions and opinions of several persons ranging from stakeholders to concerned citizens and lawyers. The Committee also tried to invite more suggestions by releasing a Press Communique on 28th January 2022. The committee presented its report on 13th July 2022 in two volumes. The Mediation Bill 2021 proposed compulsory pre-litigation mediation for matters like civil or commercial disputes. It also provided that as per the international practice, mediation and conciliation could be used interchangeably.
It also specified the issues that could not be referred to for the process of mediation, the conduct of mediation, the enforceability of the Mediated settlement agreement (MSA), and more3. The Bill was approved by both Houses of Parliament in August 2023, incorporating certain amendments suggested by the Standing Committee. The Committee recommended that prelitigation mediation remain voluntary rather than mandatory, and suggested shortening the mediation period from 180 days to 90 days, among other changes.
B. SIGNIFICANCE OF MEDIATION IN INDIA
The history of Mediation in India dates back to when village elders used to resolve disputes through common consensus. After British rule in India, this system changed with the 3India, Ministry of Law & Justice, Department of Legal Affairs, Report of the Committee Constituted for Drafting of the Mediation Bill, 2021 (2023), https://legalaffairs.gov.in/sites/default/files/MediationCommitteeReport.pdf.
introduction of the Anglo-Saxon system of jurisprudence. Mediation has held a significant place in India long before the enactment of the Mediation Act,
2023. Notable examples include the establishment of the Mediation Centre at the Madras High
Court in 2005, the Supreme Court’s Mediation and Conciliation Project Committee, and the use of mediation in major disputes such as the Assam-Nagaland border conflict and the Ayodhya Babri Masjid Ram Janmabhoomi case. However, at the local level, Mediation had no recognition, and the settlements arrived at through the process were not of much significance as it was not enforceable. The Mediation Act provides statutory recognition to this system and makes the settlements enforceable, thereby resolving the clutter associated with Mediation.
Some of the already existing provisions concerning Mediation before the enactment of the Act include Section 89(1) of the Code of Civil Procedure, 1908, Sections 14(2) and 23(2) & (3) of the Hindu Marriage Act 1955, Section 29 and 34 of the Special Marriages Act 1954 and Section 9(1) of the Family Courts Act 1984, Section 442 of the Companies Act 2013, Section 37 and sections 74 to 81 of the Consumer Protection Act, 2019, Chapter VI-A of Legal Services Authorities Act 1987 and Section 12A of the Commercial Courts Act, 2015. These provisions specify the application of Mediation in certain specific areas only. The Mediation Act provides an overview of its application in all areas and prescribes the procedure for it as well In the case of Salem Advocate Bar Association v.
Union of India4, the Supreme Court established the Mediation and Conciliation Project Committee (MCPC), chaired by Justice Jagannadha Rao. This committee was responsible for drafting the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003. Shri P Wilson observed that the Supreme Court had called for the enactment of a Mediation Act in M. R. Krishnamoorthy v. New India Assurance Company Limited5 and in K. Srinivas Rao v. D. A. Deepa6, the court had stated that pre-litigation settlement through mediation could save families of their hardships. The United Nations has actively supported mediation as a dispute resolution method. The United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention)7 promotes the enforcement of mediated settlement agreements
4 Salem Advocate Bar Association v. Union of India, AIR 2005 SUPREME COURT 3353
5 M.R. Krishnamoorthy v. New India Assurance Company Limited, AIR 2019 SUPREME COURT 5625
6 K. Srinivas Rao v. D.A. Deepa, AIR 2013 SUPREME COURT 2176
7 United Nations Convention on International Settlement Agreements Resulting from Mediation, Dec. 20, 2018, U.N. Doc. A/RES/73/198, https://uncitral.un.org/sites/uncitral.un.org/files/singapore_convention_eng.pdf.
across different countries. It also acknowledges that the terms "mediation" and "conciliation" can be used interchangeably in this context. Mediation has existed from time immemorial in India. It has also found its way into modern legislation through the Code of Civil Procedure and the Family Courts Act. The recognition of Meditation by the UN also shows its noteworthiness. The Mediation Act helps institutionalise a practice that has been in existence in India since the days of yore.
C. AN OVERVIEW OF THE MEDIATION ACT, 2023
“Mediation process is quick, responsive, economical and does not involve more cost. It also leads to harmonious settlement and helps create solutions and remedies while being confidential and informal8. ” - Shri P Wilson, MP. The Mediation Act 2023 consists of eleven Chapters and 65 Sections. The first Chapter of the Act gives the short title, extent, and commencement of the Act. The Second Chapter deals with the Application of the Act, the third Chapter with Mediation, the fourth with Mediators, the fifth with Mediation Proceedings, the sixth with the Enforcement of Mediated Settlement Agreement, the seventh with Online Mediation, the eighth with Mediation Council of India, the ninth with Mediation Service Providers and Mediation Institutes, the tenth with Community Mediation and the eleventh with Miscellaneous provisions.
It can be inferred from the Chapters that the Act provides detailed provisions regarding the conduct and means of conduct of Mediation. Some notable provisions that make the Mediation Act, 2023 a substantial development include:-
1. Section 2 of the Act specifies the application of the Act. It, by specifying the instances
where Mediation can be sought, reduces the ambiguity regarding its application.
2. Section 3 of the Act provides definitions. The definition of “mediator” as provided,
signifies that it stands for a person who is appointed by the parties or by a mediation 8 Shri P. Wilson, MP, Member, Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Report No. 117 on the Mediation Bill, 2021, Rajya Sabha Secretariat, July 2022, at 92, https://prsindia.org/files/bills_acts/bills_parliament/2021/SC%20Report_Mediation%20bill.pdf.
service provider to conduct mediation and includes a person registered as mediator with the Council.
3. Section 4 of the Act outlines the requirements for a mediation agreement. It specifies
that the agreement must be in writing and made between the parties or their representatives. This agreement can either be a mediation clause included within another contract or a standalone mediation agreement.
4. Section 5 of the Act addresses pre-litigation mediation. It allows parties involved in
civil or commercial disputes to voluntarily choose mediation by mutual agreement before initiating litigation. Unlike the Mediation Bill, 2021, this process is not mandatory.
5. Section 8 of the Act pertains to the appointment of mediators. Clause 1 allows a person
of any nationality to be appointed as a mediator. However, foreign nationals must meet specified qualifications, experience, and accreditation requirements. Mediators can be appointed either by the parties involved or by a mediation service provider. The appointed mediator is required to respond within seven days of receiving the appointment notice, indicating their willingness to serve. Section 10 provides that, before mediation begins, the mediator must disclose in writing to the parties any circumstances that could raise questions about their impartiality.
6. Sections 13 to 26 of the Act govern the mediation proceedings. Section 13 states that
mediation must take place within the territorial jurisdiction of the court or tribunal with competent authority, or at any other location agreed upon by the parties. Section 15 outlines the mediator’s role, emphasizing that the mediator shall assist the parties independently, neutrally, and impartially to help them reach an amicable settlement. Section 17 clarifies that a mediator cannot act as an arbitrator or serve as a party’s representative or counsel. The Act also requires that mediation proceedings be completed within 120 days, with a possible extension of up to 60 days if all parties consent.
7. Section 27 provides that the mediation settlement agreement will be binding on all
parties involved.
8. Section 30 allows for online mediation to be conducted at any stage of the process,
provided that all parties give their written consent.
9. Section 31 provides for the creation of the Mediation Council of India, which is
responsible for carrying out the duties and functions outlined in this Act. The Council’s mandate includes promoting and advancing mediation across India.
10. Section 40 identifies the bodies and institutions that may be recognized as mediation
service providers. This includes organizations that facilitate mediation under the Act, Authorities established under the Legal Services Authorities Act, 1987, court-annexed mediation centers, or any other entities notified by the Central Government. These providers are responsible for accrediting mediators, maintaining a panel of mediators, offering mediator services for mediation proceedings, and promoting professional and ethical standards among mediators.
11. Section 43 provides for community mediation, allowing disputes that may impact
peace, harmony, and tranquility among residents or families in a particular area to be resolved through this process, subject to the parties’ mutual consent. Applications can be submitted to the relevant Authority established under the Legal Services Authorities Act, 1987, or to the District Magistrate or Sub-Divisional Magistrate. The mediation may be conducted by community mediators appointed by these authorities.
12. Section 45 establishes a mediation fund intended to support the promotion, facilitation,
and encouragement of mediation.
13. Section 51 empowers the Central Government to formulate rules for implementing the
provisions of this Act.
D. STRENGTHS AND WEAKNESSES OF THE ACT
Though vital, the Mediation Act has drawbacks. The strengths and weaknesses of the Act are discussed below. a. Strengths of the Mediation Act, 2023 ● The Mediation Act envisages provisions for the time-efficient and cost-efficient
settlement of disputes and reduces the burden on the courts. ● The Act, by conferring enforceability to the mediation settlement agreement, makes a revolutionary development in the field of dispute settlement. ● The process of mediation is completely confidential and voluntary, and involves a settlement initiated by a neutral mediator. ● It provides detailed provisions regarding the appointment of a mediator, the establishment of the mediation council, community mediation, etc. ● It provides for online mediation, which simplifies the process and facilitates the facile settlement of international and national disputes. ● Community mediation is an excellent method of dispute settlement which can aid communities in fostering healthy relationships with one another. b. Weaknesses of the Mediation Act, 2023 ● The main impediment to the Mediation Act is the mentality of the people.
The idea of mediation has yet to get to the people, as they are unaware of the process. The preference for litigation over mediation hinders the development of mediation. ● The voluntary nature of mediation reduces the chances of people opting for it as both parties need to mutually consent to initiate the process, and it is a herculean task to create a consensus between 2 rifting parties. ● The Act requires mediators to register through various channels, including the Mediation Council of India, court-annexed mediation centers, recognized mediation service providers, and Legal Services Authorities. ● Online mediation is an exemplary alternative. But, the process may take time to percolate into the society as there are still communities with no access to the internet. ● The mediation council needs to get approval from the central government before making regulations.
● Clause 8 of the Act allows for interim relief but only in exceptional cases, although the Act does not define what constitutes such circumstances.
E. RECENT DEVELOPMENTS IN MEDIATION IN INDIA
The field of mediation in India has seen significant advancements in recent years, driven by legislative reforms, landmark case laws, and initiatives from government agencies and institutions aimed at promoting mediation as a preferred mode of dispute resolution. a. Legislative reforms The legislative landscape for mediation in India has been significantly shaped by recent reforms. The Mediation Act, 2023 stands out as a landmark development, providing a comprehensive legal framework that mandates pre-litigation mediation, establishes mediation centers, and ensures the accreditation of mediators, thus enhancing professionalism and standardisation in the field. Additionally, amendments to the Arbitration and Conciliation Act in 20159 and
201910 have bolstered the integration of mediation within the broader spectrum of
ADR mechanisms by facilitating its use alongside arbitration, particularly through conciliation processes. These legislative reforms collectively aim to streamline dispute resolution, reduce judicial backlog, and promote mediation as a viable and effective alternative to litigation. Case laws: a. M.R. Krishna Murthi v. New India Assurance Co. Ltd.11 In this case, the Supreme Court directed the establishment of a Mediation and Conciliation Project Committee to spread awareness about mediation and institutionalise its practice across the country. This has led to increased adoption and normalisation of mediation as a standard practice in dispute resolution.
9 Arbitration and Conciliation (Amendment) Act, 2015
10 Arbitration and Conciliation (Amendment) Act, 2019
11 M.R. Krishna Murthi v. New India Assurance Co. Ltd., AIR 2019 SUPREME COURT 51
b. Srinivas Rao v. D. A. Deepa12 This case further emphasised the role of mediation in matrimonial disputes. The Supreme Court directed family courts to make it mandatory for parties to attempt mediation before proceeding with litigation. The Court observed that mediation could resolve differences more effectively and preserve family harmony. c. M/S Srei Infrastructure Finance Ltd. v. Tuff Drilling Pvt. Ltd. 13 This case played a pivotal role in promoting mediation as a key tool for resolving commercial disputes in India. It set a precedent for the judiciary to actively recommend mediation, thereby fostering a culture where commercial entities consider ADR mechanisms as the first step in dispute resolution. b.
Government and Institutional Initiatives: To promote mediation as a preferred mode of dispute resolution, the government and various institutions have undertaken significant initiatives. These efforts aim to enhance the accessibility, efficiency, and credibility of mediation services in India. ● Establishment of Mediation Centers Several High Courts and District Courts have established mediation centers to facilitate the resolution of disputes through mediation. These centers provide infrastructure and administrative support, making mediation more accessible to the public. ● Training and Accreditation Government agencies and legal institutions have initiated training programs for mediators to ensure they are well-equipped with the necessary skills and
12 Supra note 4, at 4.
13 M/S Srei Infrastructure Finance Ltd. v. Tuff Drilling Pvt. Ltd., AIR 2018 SUPREME COURT 470
knowledge. The Mediation Act, 2023, mandates accreditation, which enhances the credibility and reliability of mediation services. ● Online Dispute Resolution (ODR) in India The adoption of Online Dispute Resolution (ODR) in India has significantly accelerated, particularly due to the COVID-19 pandemic, which highlighted the need for remote and accessible dispute resolution mechanisms. ODR leverages technology to facilitate mediation and arbitration online, making the process more convenient and efficient. It has proven particularly useful during lockdowns and periods of social distancing, ensuring that dispute resolution remains uninterrupted. ● International Collaborations India has significantly enhanced its mediation practices through collaborations with international organizations, aligning with global standards to improve dispute resolution.
Key partnerships include adopting elements of the UNCITRAL Model Law, signing the Singapore Convention on Mediation14, and engaging with the World Bank for regulatory reforms.
F. RECOMMENDATIONS TO ADDRESS THE WEAKNESSES IN THE
MEDIATION ACT, 2023
To address the identified weaknesses of the Mediation Act, 2023, the following recommendations are proposed to enhance its effectiveness and adoption:
1. Raising Awareness and Changing Mentality:
The first thing we want to achieve is to change the present mentality of the citizens from believing litigation to be the only solution. Launch nationwide campaigns using various media channels, including social media, radio, television, and community outreach, to educate the public about the benefits of mediation. Integrate mediation education into academic curricula and professional training programs for lawyers, judges, and other 14Supra note 7, at 7.
stakeholders. Publicise successful mediation cases to build trust and demonstrate their effectiveness.
2. Encouraging Voluntary Participation:
Provide financial or procedural incentives for parties who choose mediation over litigation, such as reduced court fees or expedited processes. Implement policies requiring parties to attempt mediation before proceeding to court, especially for specific disputes like commercial or family matters.
3. Simplifying Mediator Registration:
Consolidate the registration requirements to a single point of registration under the Mediation Council of India. Ensure that mediators registered with recognized mediation service providers or Legal Services Authorities are automatically recognized by the Mediation Council of India, thereby making the process smoother for citizens.
4. Enhancing Access to Online Mediation:
Invest in improving internet infrastructure, particularly in rural and underserved areas. Conduct digital literacy initiatives to equip communities with the skills needed for online mediation. Develop and promote easy-to-use online mediation platforms for individuals with limited technological expertise.
5. Autonomy of the Mediation Council:
Advocate for amendments that grant the Mediation Council of India more autonomy in making regulations without requiring prior approval from the central government.
6. Clarifying Interim Relief Provisions:
Amend the Act to provide a clear definition of "exceptional circumstances" under Clause 8, including examples and guidelines. Develop standard operating procedures (SOPs) for granting interim relief to ensure consistency and transparency. IV.
CONCLUSION
Litigation is the act, process, or practice of settling a dispute in a court of law. Litigation is
carried on in India through an independent judiciary. However, with the escalating number of cases, the need for an alternate solution becomes indispensable. Mediation, being an age-old system, can create substantial progress in this matter. 15 The Mediation Act is a vital development in the field of ADR. Mediation has added leverage to dispute redressal in a number of countries. In Italy, Legislative Decree No. 28 of 2010 initially introduced compulsory mediation for certain civil and commercial disputes, requiring parties to attend a mediation session before proceeding to litigation16. However, the mandatory nature was later challenged, and subsequent amendments modified it to a system where an initial mediation session is mandatory, but full mediation remains voluntary.
As per a study by the Ministry of Justice in Italy, the average resolution rate in 2021 for parties settling in mediation was 45. 8%17. China has enacted a law on mediation18, the People’s Mediation Law, and a “Great Mediation Movement” is going on throughout the country. In Hong Kong, a mediation center19 has also been established. The European Union has issued a directive urging its member states to establish a legal system of mediation20. The United Kingdom has emphasized the importance of mediation by implementing reforms within its civil justice system, particularly through the Civil Procedure Rules and Practice Directions, which encourage the use of Alternative Dispute Resolution (ADR) methods, including mediation, before initiating court proceedings21. France, Belgium, Sweden, etc. have set up mediation centers. The U. S. A.
also has established court-ordered and court-sponsored mediation and in certain cases, mediation is mandatory22. The Singapore Convention on Mediation23 enables the cross-border enforcement of settlement agreements arising from mediation. As a signatory, 15Litigation, Merriam-Webster. com Dictionary, https://www. merriam-webster. com/dictionary/litigation (last visited May 23, 2025). 16 Legislative Decree No. 28, of March 4, 2010, Disposizioni integrative e correttive del decreto legislativo 4 marzo 2010, n. 28, in Gazzetta Ufficiale No. 61 (March 15, 2010) (It. ). 17 Mediations in Italy: Overview, LC ALEX, https://www. lcalex. it/en/mediations-in-italyoverview/#:~:text=According%20to%20a%20study%20(in,Article%202%2C%20Legislative%20Decree%20no . (last visited May 24, 2025).
18 People’s Mediation Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l
People’s Cong., Oct. 31, 2010, effective Jan. 1, 2011). 19 Hong Kong Mediation Centre, About Us, https://www.hkmediationcentre.org.hk/en/about-us/ (last visited May 24, 2025). 20 Council Directive 2008/52/EC, of May 21, 2008, on certain aspects of mediation in civil and commercial matters, 2008 O.J. (L 136) 3.
21 Civil Procedure Rules, Practice Direction on Pre-Action Conduct and Protocols, S. 3 (UK),
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct (last visited May 24, 2025). 22 U.S. District Court for the Northern District of New York, General Order #47: Mandatory Mediation Program (Sept. 16, 2022), https://www.nynd.uscourts.gov/sites/nynd/files/general-ordes/GO47_3.pdf.
23 Supra note 7, at 7.
India reinforces the international acceptance of mediation as a credible and practical alternative to litigation in suitable cases. Effective dispute resolution is a constant necessity. As society evolves, the systems for resolving disputes must also adapt. Alternative dispute resolution (ADR) offers an efficient method, serving as an alternative to litigation with less hassle. Arbitration and mediation are two effective methods of dispute settlement in ADR. In arbitration, the arbitrator aims to settle the dispute by making a binding decision, whereas in mediation, the mediator remains a neutral party and helps formulate a mutual agreement between the parties. Many disputes, such as property disputes and water disputes, can be resolved through mediation in a cost-effective and time-efficient manner. However, mediation and arbitration are not one-size-fits-all solutions.
Not all cases can be settled through these methods. The parties involved in a dispute must identify the best remedy suitable for their specific situation and proceed accordingly. By incorporating the recommendations mentioned above, the Mediation Act, 2023, can become a more robust and widely accepted framework for resolving disputes which will streamline the mediation process, making it more accessible and efficient for all parties involved. Mediation is an efficacious settlement mechanism, which if used efficiently can produce desirable results. The executive should take constructive steps towards increasing awareness about mediation in society. Alternate Dispute Redressal is the future of dispute settlement and mediation is a tool through which the system can triumph.