ABSTRACT

The passage into law of the Mediation Act, 2023 marks a major milestone in the Indian Government’s efforts to improve its dispute resolution regime as well as deal with the long-standing issue of judicial backlog. Mediation, being one of the main components of Alternative Dispute Resolution (ADR) is an effective tool for the peaceful resolution of disputes through a process that is both efficient and economical. Although mediation has been practiced in India for many years, it was not anchored in any form of legislation which led to haphazard application of the process. The Mediation Act, 2023 tries to correct this anomaly by creating a legal framework for all types of mediations and making the mediation process enforceable.This paper provides a critical discussion of the Act through an examination of the major aspects of the Act, its strengths, and its capacity to revolutionize the dispute resolution system in India. Additionally, the paper will also highlight the constitutional, institutional, and practical barriers to the successful implementation of the Act, especially in regards to pre-litigation mediation, justice for all, and the Mediation Council of India. The discussion in the current paper suggests that the success of the Act hinges heavily upon effective implementation and cultural change.

KEYWORDS: Mediation Act, 2023; Alternative Dispute Resolution (ADR); Pre-Litigation Mediation; Dispute Resolution; Judicial Backlog.

INTRODUCTION

Any legal system must be able to resolve conflicts, but India’s traditional adjudicatory process has long been hampered by excessive delays and growing backlogs of cases. The need for quick, economical, and effective conflict resolution procedures has grown as millions of cases are pending at all judicial levels. Alternative Dispute Resolution (ADR) procedures, especially mediation, have become effective means of enhancing the official justice delivery system under this situation.More than 51 million cases are awaiting resolution in the Indian courts across all levels of the judiciary as of 2024[1]. Mediation effectively contributes to the voluntary resolution of conflicts.

Mediation is a component of alternative dispute resolution used to address conflicts. When discussing mediation, the Singapore Convention on Mediation (SCM)[2] should be considered, and India is a signatory to it. The Mediation Act 2023[3] is the initial standalone legislation regarding mediation. It seeks to settle the conflicts peacefully. It also discusses the formation of the Mediation Council of India, the role of online mediation, and promotes community mediation while recognizing voluntary pre-litigation efforts. A key aspect is rendering the mediated settlement agreement enforceable as a court decree. Mediation is not a formal process that entails court procedures, burden of proof, or witness testimony; rather, it is a method where the parties jointly meet with a neutral third party known as a mediator, who helps them resolve their disputes and come to an agreement. The Government has been consistently working to establish a policy to resolve the conflicts for an extended period. The different clauses that discuss mediation are:

• Article 89 of the Civil Procedure Code[4],
• Sections 442, 446, and 449 of the Companies Act 2019[5],
• Sections 37, 38, 39, and 40 of the Consumer Protection Act 2019[6],
• Section 30 and Section 31 of the Arbitration and Conciliation Act of 1996[7],
• Clause 12 of the Commercial Courts Act 2015[8].

EVOLUTION OF MEDIATION IN INDIA

Mediation, as a process of resolving disputes, is not a new concept in India, but has been practiced for centuries in the country. Since ancient times, disputes among members of any community have been settled by informal means, such as using village Panchayats where elders would serve as neutral mediators, ensuring that an agreement between the conflicting parties could be reached in a friendly manner[9]. Nevertheless, with the coming of the colonial administration, and subsequently with the formalization of the legal system in India, there was a decline in the practice of using such processes to settle disputes.

After attaining independence from the British rulers, the Indian legal system continued to depend much on litigation. This created complications in the system, with many cases being delayed, and a large number remaining pending in the courts. As a way of addressing such problems, steps were taken to introduce other means of resolving disputes. Among them was the addition of Section 89 in the Code of Civil Procedure, 1908[10], through the 2002 amendment[11], providing that courts may refer disputes to ADR methods like mediation, arbitration, conciliation, and Lok Adalats.

More recently, further progress occurred with the passing of the Commercial Courts Act, 2015[12], where the idea of pre-litigation mediation in commercial cases was introduced. The subsequent 2018 amendment[13] to the law rendered mediation in commercial disputes above a certain amount mandatory. Furthermore, signing the Singapore Convention on Mediation[14] is one of the ways India showed its intentions to align its dispute resolution system with international norms, especially with regard to international commercial disputes.

Nevertheless, the lack of a legal framework that would regulate mediation in India prevented the process from becoming more integrated. In light of the foregoing, passing the Mediation Act, 2023[15] appears to be an effective solution to this problem. The passage of the act marks a new stage in India’s evolution from an adversarial dispute resolution system to a cooperative approach to settling disputes.

[1]Vandana Ghai, Mediation Act 2023: Need of an Hour, 8 Int’l J. L. Mgmt. & Humans. 526, 528 (2025)

[2]United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation), 2019

[3]The Mediation Act, 2023, No. 32 of 2023

[4]Code of Civil Procedure, 1908, § 89

[5]Companies Act, 2013, §§ 442, 446, 449

[6]Consumer Protection Act, 2019, §§ 37–40

[7]Arbitration and Conciliation Act, 1996, §§ 30–31

[8]Commercial Courts Act, 2015, § 12A

[9]Nazuk Sood, Mediation Act, 2023: An Analytical Study, (2024) 6 Int’l J. Multidisciplinary Rsch.

[10]Code of Civil Procedure, 1908, § 89

[11]Code of Civil Procedure (Amendment) Act, 2002

[12]Commercial Courts Act, 2015

[13]Commercial Courts (Amendment) Act, 2018

[14]Supranote 2

[15]Supranote 3