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To transform the status quo prevailing in the Indian judicial sysem, mediation as an Alternative Dispute Redrassal (ADR) mechanism can be considered as a way forward. For that sake, the concept of pre - litigation mediation is like a cherry on the cake. Pre - litigation mediation can be understood as a consensual process whereby the plaintiff and the respondent come together to settle the dispute amicably between them with the aid of an impartial adjudicator, before the instituiton of a suit or even before sending the notice to the court. It is a prefrred way of settlement because unlike a suit, where a judge is the adjudicator, in mediation the adjudicator is a choice of the party/ parties and also ensures a win - win situation for the disputants since the main instruments of the process are negotiation and understanding.

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 responsibilty to persuade the parties to opt for mediation. However, the Indian laws donot provide for a compulsory mediation in the pre - litigation stage. A formal recognition of the same was received in the case of K. Srinivas Rao vs. D A Deepa ( (2013) 5 SCC 226 ) where the rsolution of a matrimonial dispute was the issue in question.

A proper codification of the concept of pre - litigation mediation in cases of commercial disputes can be found in the Commercial Courts Act, 2015. Later by an amendment in 2018 section 12A was inserted that made a provision for pre - litigaton mediation. The section says that in cases that donot contemplate an urgent interim relief under the Act, pre - instituiton mediation must be resorted to by the parties. The procedure for such pre - instituion mediation in cases of commercial disputes is in the Commercial Courts ( pre - instituion mediation and settlement ) Rules, 2018. The Rules lay down that to initiate mediation the plaintiff needs to file an application with the State Legal Services Authority or the District Legal Services Authority constituted under the Legal Services Authority Act, 1987. The authority needs to notify the other party, to appear before it, within a period of ten days and take part in the mediation proceedings.  At the completion of the period of ten days, the authority shall send a final notice to the ther party, failing to respond to which shall be deemed by the authority to be a non starter of the mediation process. On the contraty, if the other party responds to the notice then with the completion of the negotiations and the meetings, settlement agreement shall be drawn up and recorded in an agreement.

The authority authorised by the Central Government under the Legal Services Authority Act, 1987 shall complete the process of mediation withi a period of three months with a possible extension of two months, from the date of aplication made by the plaintiff. The settlement arrived shall have the same status and effect as that of an arbitral award under section 30 of the Arbitration and Conciliation Act, 1996.

  • benefits of pre-litigation mediation
  • area of application of pre-litigation mediation
  • statutory safeguards of pre-litigation mediation

BY : Mekhla Chakraborty

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