The Pre-Litigation Paradox: Making Peace With Mandatory Mediation Under The Commercial Courts Act And The Voluntary Regime Of The Mediation Act, 2023

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Kartavya Kanchan Singh, Research Associate, IIULER, Goa (India)

ABSTRACT

This paper analyses the legal and practical issues under the Indian commercial dispute resolution system of mandatory and voluntary mediation. It targets the conflict between Section 12A of the Commercial Courts Act, 2015, which shows that pre-litigation mediation is a mandatory procedure and Section 5 of the Mediation Act, 2023, which advocates mediation as a voluntary process. In the study, the doctrinal and comparative research methodology is developed on a statutory basis, judicial interpretation and international models.

The results demonstrate that in India, the mandatory mediation process has failed to enhance settlement rates and usually leads to mechanical involvement. The research establishes that mandatory mediation is a procedural filter of access to court and not a settlement mechanism. Meanwhile, the level of participation in voluntary mediation remains at a very low level. The comparative analysis with the United Kingdom and Italy shows that the indirect pressure in the form of cost sanctions and obligatory first sessions may enhance the engagement, especially in the case of the minimal use of compulsion to initial exposure and institutional preparedness.

This paper states that full compulsion and full voluntariness are neither effective in the Indian context. Rather, a graded compulsory method where the parties will be asked to complete a limited number of structured mediation sessions, but are free to proceed or withdraw, seems to be more appropriate. The reason behind the conclusion is that reform of mediation in India ought to highlight the structured exposure, institutional capacity, and behavioural alignment more than procedural force.

Keywords: Mandatory mediation, Commercial Courts Act, Mediation Act 2023, Access to justice, Alternative dispute resolution.

264. THE PRE-LITIGATION PARADOX- MAKING PEACE WITH MANDATORY MEDIATION UNDER THE COMMERCIA

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