The Mediation Act, 2023: Voluntary Pre-Litigation Mediation—Practical Feasibility and Challenges

Simran Kumari and Aditya Raj

No jp5r6_v1, LawArchive from Center for Open Science

Abstract: The Mediation Act, 2023 establishes a statutory framework for institutional, online and community mediation in India. A central feature of the Act is pre-litigation mediation, under which parties to civil or commercial disputes may voluntarily and with mutual consent attempt settlement before approaching a court. The Act also gives mediated settlement agreements a final, binding and enforceable status, subject to limited statutory grounds of challenge. This study evaluates the practical feasibility and challenges of the framework through doctrinal analysis, secondary literature and a primary Google Form survey of nine respondents collected on 10 and 14 September 2026 through convenience sampling. The respondents were predominantly law students and urban residents. Descriptive analysis indicates strong perceived support for awareness-building, mediator training, online-dispute-resolution infrastructure, prompt constitution of institutional bodies and stronger enforcement mechanisms. The results also identify lack of awareness, inadequate rural digital access, perceived power imbalance and incomplete institutional readiness as significant barriers. The study clarifies an important legal point: section 5 of the Mediation Act makes general pre-litigation mediation voluntary and consensual; it does not itself create a universal mandatory requirement. Mandatory pre-institution mediation continues separately for qualifying commercial disputes under section 12A of the Commercial Courts Act, 2015. The study concludes that effective case diversion will depend not merely on statutory recognition but on accessible mediation service providers, trained mediators, enforceable settlements, legal awareness, safeguards for weaker parties and reliable digital infrastructure.

Date: 2026-10-15
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Persistent link: https://EconPapers.repec.org/RePEc:osf:lawarc:jp5r6_v1

DOI: 10.31228/osf.io/jp5r6_v1

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