LEGAL FRAMEWORK FOR

MEDIATION IN INDIA –
A CASE STUDY
AUTHORS: SANTOSH KUMAR MAHADEVUNI & SAMPATH KUMAR MAHADEVUNI

ABSTRACT
This paper discusses the legal framework and the laws governing Mediation
in India. In the last decade, there has been a tremendous increase in the pendency
of cases across the courts in India. The Indian Judicial system needs to look for an
alternative to dispose of the cases at the earliest. Mediation is one of the best ways
to solve this. Decisions made in the process of Mediation will have legality if they
are backed by any law or legislation governing the subject matter.
Though Mediation is seen as the future of dispute resolution and a perfect
alternative to court litigation, India lacks a proper law and framework governing
Mediation. Thus, bringing mediation legislation into force would improve the
disposal rate of pending court cases.
The mediation procedure in India is not a recently created technique for dispute
redressal; it is an age-old process since the Vedic period. But Mediation has yet
to be very popular. One reason is that Mediation is not a formal proceeding, and
courts of law cannot enforce it. It is helpful for both sides - the courts are somewhat
less burdened with cases, and the parties are getting their issues settled rapidly
with fewer problems and in a smoother way.
Having a proper law or legislative framework governing Mediation in India is
the need of the hour. Because this mechanism in Indian Judiciary aims to reduce
the burden on the courts by applying scientifically developed techniques to resolve
disputes between the parties, if such resolutions are not given legal authority, then
there is a chance of increasing the appellate Jurisdiction in the higher-level courts.
It will defeat the whole purpose of ADR.
Any Social constructs, such as marriage, organized religions, education, etc.,
find their meaning and purpose only when backed by the respective laws governing
them. Similarly, Mediation also requires governing laws to meet their meaningful
goal. This will immensely help society in delivering justice rapidly and effectively.
Until then, in social justice, Mediation remains an eternal toothless tiger.

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Issue 1 Vol-2  April 2023 AUTHORS : SANTOSH KUMAR MAHADEVUNI & SAMPATH KUMAR MAHADEVUNI

LEGAL FRAMEWORK FOR MEDIATION IN INDIA – A CASE STUDY

2. INTRODUCTION: The Apex Court recognizes mediation, and the

Mediation and Conciliation Project Committee has
Mediation is one of the Alternative Dispute
been formed to train and encourage this dispute
Resolution Mechanisms in which the mediator, a
resolution process.
neutral person to both parties, will help the disputants
to resolve the dispute peacefully without a court
proceeding. A mediator is a facilitator who can help 3. CONCEPT & ADVANTAGES OF
the parties to understand the issues/interests of the MEDIATION IN INDIA:
opponents and try to reach a common goal to resolve
Although informal Mediation has been used
the dispute. In this mediation process, the mediator
in India for ages, a settlement reached through
does not make the decision; it is a collaborative and
Mediation is still not recognized by Indian law.
amicable solution by the parties to the dispute.
Mediation is beneficial, and a great method for
The mediator arranges a private, confidential resolving disputes, but its non-binding nature (and
meeting where the parties can speak face-to-face. consequent reliance on the disputing parties’ free
Both parties will have the chance to express their will) leaves it open to abuse. In that regard, the
points of view and hear what the other has to say. implementation of legislation governing Mediation is
The parties are not forced to accept the mediator’s likely to promote the adoption of a tier-based dispute
recommendation. resolution clause, which first provides for Mediation
Mediation is one of the best Alternative Dispute and, subsequently, arbitration.
Resolution mechanisms for small to medium-level Parties usually voluntarily agree to mediate to
enterprises/businesses in case of commercial address their legitimate dispute, making Mediation in
disputes, as the other alternative dispute resolution India a party-centric and impartial process. A neutral
mechanisms will have a systematic procedure to be third party, such as a mediator, is chosen to assist the
followed and cost involved, such as arbitration and parties in coming to a mutually acceptable resolution
conciliation. Whereas the mediation process does of their differences. With the aid of a mediator, parties
not involve any special procedures or professional present each other with their problems and potential
setup to handle the process, small and medium solutions through coordinated conversation and
businesses would like to opt for this process. negotiation.
In addition to commercial disputes, it is the best The use of Mediation as an Alternative Dispute
and proven mechanism for conflicts related to marital, Resolution mechanism dates to centuries before the
family disputes, partnership disputes, property- British came to India. Back then, informal panchayats
related issues, etc., which are of domestic nature. were used to resolve disputes between the parties
This mechanism is more to convince the parties to where the respected elderlies of the villages or
the dispute; the mediator has a lot of importance. The the Mahajans were appointed as mediators. Till
mediator must use different techniques and methods date, Panchas or Pancha Parmeshwars, as neutral
to open a dialogue and empathy between the parties third parties, are used to settle disputes informally
to dispute, aiming to reach a common goal. between the erring individuals or groups by some
Either an evaluative or a facilitative style can tribes in India. However, with the onset of British
be used to define the mediator’s approach. The colonialism, Mediation began to be recognized as a
“settlement range” is said to be more aggressively formal and legalized ADR mechanism.
narrowed by evaluative mediators, who weigh the Now we have grown into a country of 139 crore
law, the merits, and what seems fair before trying people, and with liberalization and globalization, there
to persuade the parties to agree. They try to explain is tremendous economic growth. This has caused the
and force their point of view on the matter. The active number of lawsuits to skyrocket in our nation. Even
evaluation and expression of opinions on the merits though our legal system is one of the greatest in the
are left in the hands of the parties, while facilitative world and is well-respected, there is a lot of criticism
mediators help the parties achieve a resolution since legal disputes often take a very long time to be
through the process. resolved. A sincere litigant is now hesitant to ask the

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Issue 1 Vol-2  April 2023 AUTHORS : SANTOSH KUMAR MAHADEVUNI & SAMPATH KUMAR MAHADEVUNI

LEGAL FRAMEWORK FOR MEDIATION IN INDIA – A CASE STUDY

court to resolve his issue. We have therefore used • delay.

channels for Alternative Dispute Settlement. • expense.
Advantages of the Mediation Process: • rigidity of procedures; and
One of the primary benefits of Mediation in • a reduction in the participatory role of parties.
India is that it is an entirely private method of dispute
Greater Degree of Party Control:
resolution. The mediator and the disputing parties
are the only persons involved, making the parties’ The outcome of a disagreement is more in the
affairs private and personal. Inordinate delays and power of the parties who negotiate their solutions. In
growing court arrears have made Indian dispute the process, all parties have an equal voice. Instead
resolution tiresome. In its fourteenth report, the of assigning blame, the parties settle their dispute in
Law Commission mentions ways and means to an acceptable way to both of them.
comprehend that justice is simple, quick, affordable, Preservation of Relationships:
efficient, and significant. In the framework of continuous professional
The following are the benefits of the interactions, many arguments take place. Working
Mediation process in India : relationships are frequently preserved in ways
Quick and Inexpensive: that would not be conceivable in a win/lose
decision-making process via mediated agreements
Mediation is an alternative to consider when
that address the interests of all parties. A work
parties desire to move on with their lives and
relationship’s ending can also be made more friendly
businesses. In general, Mediation takes less time
through Mediation.
to complete, enabling a quicker resolution than
is feasible with the investigation. The mediation Mutually Satisfactory Results:
procedure typically takes far less time than moving a In general, parties are happier with solutions
case through traditional legal channels, even though they helped develop than those that a third-party
a mediator may charge a fee comparable to that of an decision-maker forces.
attorney. A case may be resolved in a couple of hours A Foundation for Future Problem-Solving:
through Mediation instead of months or years when
handled by a lawyer or in court. Spending less time If a conflict arises after a mediation resolution,
also implies paying lower hourly rates and expenses. the parties are likelier to choose a cooperative
venue for problem-solving to settle it than to take an
Confidential: adversarial route.
Mediation is a confidential process. The
mediators shall not disclose any information 4. LEGAL FRAMEWORK FOR
disclosed during the Mediation. The sessions are
not transcribed or recorded on tape. Whatever
MEDIATION IN INDIA:
notes the mediators made throughout the Mediation The possibility of enacting an act for Mediation
are destroyed when it is over. While the mediation to take care of various aspects of Mediation, in
meetings are private and confidential, court hearings general, has already been recommended by the
are open to the public. What took place throughout Apex Court in India. However, establishing a legal
the mediation process is only known to the mediator framework for an online dispute resolution (ODR)
and the disputing parties. A mediator cannot typically platform for parties seeking to resolve a commercial
be compelled to testify in court about mediation dispute must be emphasized. As India has signed
details since confidentiality is crucial to the process. the United Nations Convention on the International
Settlement Agreements Resulting from Mediation,
Finding solutions to the pitfalls of Litigation:
i.e., The Singapore Convention on Mediation, under
Mediation at one level of perception is a means the Convention, most agreements that are settled
of avoiding the pitfalls of Litigation. The problems through a mediation process will be enforceable in
that arise in resolving disputes through Litigation are the courts of any signatory state in accordance with
well known. These are broadly: their own rules of procedure and under the conditions

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Issue 1 Vol-2  April 2023 AUTHORS : SANTOSH KUMAR MAHADEVUNI & SAMPATH KUMAR MAHADEVUNI

LEGAL FRAMEWORK FOR MEDIATION IN INDIA – A CASE STUDY

laid down in the Convention, thus, paving the way for and settle industrial disputes and prescribes the
settlements to be recognized internationally. procedure to be followed in depth.
As mentioned, there has been a sudden increase Mediation in Companies Act:
in disputes during the last decade. Indian courts are The Companies Act of 2013 makes an effort
overwhelmed with pending issues/disputes at various to modernize how businesses are owned and run
stages. To lessen the burden on Indian courts, many in India to keep up with international standards. In
statutory provisions direct compulsory Mediation as the same vein, The Companies Act 2013 permits
a prerequisite to filing the suit in court. parties to a dispute to ask to be referred to Mediation
Mediation in Matrimonial Disputes: or conciliation before government officials (such as
The institution of marriage has altered in the Regional Director, Registrar of Companies, etc.)
modern world. It is no longer taken for granted that or the tribunals established by The Companies
it is a lifetime commitment. Due to several factors, Act 2013, i.e., National Company Law Tribunal or
including economic independence, globalization, and National Company Law Appellate Tribunal. According
other factors, marriage connections are becoming to The Companies Act of 2013, the mediation and
relatively weak. A man and his wife can no longer conciliation process must be carried out before
be said to be in a sacred union. Many matrimonial specialists are appointed to the mediation and
cases are emerging because of the changed conciliation panel (the “Panel”).
circumstances. The Judiciary cannot handle these The National Company Law Tribunal and the
issues since the growing quantity of cases already Appellate recommend the issues to Mediation under
overburdens it. Alternative conflict resolution is the Section 4 of The Companies Act, 2013. Mediation was
best option with such a burden. It offers a framework made available as an alternative dispute resolution
for the legal resolution of disputes involving private method inside the Companies Act 2013, according to
parties. A third party known as the mediator acts as Section 442 of that law. The Businesses (Mediation
a mechanism for Mediation, a type of alternative and Conciliation) Regulations, 2016 (Rules) were
dispute resolution. announced on September 9, 2016, and will be used
There are references to mediation/conciliation to execute this clause.
in family dispute resolution, which are present in Mediation in Consumer-related Issues:
Family Courts Act 1984, Civil Procedure Code 1908, The 2019 amendment to the Consumer
Hindu Marriage Act 1955, and the Legal Services Protection Act devotes a whole Chapter to using
Authorities Act 1987 that gives a special status to Mediation as a first resort before turning to a
Lok Adalat as it has been very effective in mediating consumer redressal body to resolve disputes. The
family disputes. provisions for establishing the Consumer Mediation
Mediation in Industrial Disputes: Cell, the mediators’ empanelment, the mediators’
Industrial disputes typically occur when there is nomination from the panel, the mediation procedure,
a disagreement or conflict between employees and the settlement through Mediation, etc., are all
their employers, or amongst employees themselves, included in Chapter V of the Consumer Protection
that has to do with employment, non-employment, Act, 2019’s section on Mediation.
the terms of employment, or working conditions. Mediation in Family disputes:
Common industrial issues include lockouts, layoffs, Regarding family law conflicts, Mediation has
retrenchments, and so on. There are several options proven to be a smart alternative. Family conflicts
available to settle such conflicts or concerns. are fundamental, and they must be handled with
Mediation is the best, fastest, and most affordable patience to find a resolution that benefits both sides.
method of resolving such conflicts. The Industrial Also, it settles disagreements more quickly than what
Disputes Act of 1947 makes mention of conciliation happens in court. Conflicts arise over family-related
and Mediation. issues, including inheritance, worries for extended
Section 4 of the Industrial Disputes Act 1947 family, elder care, etc., between couples, siblings,
gives conciliators the responsibility to mediate parents, etc.

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Issue 1 Vol-2  April 2023 AUTHORS : SANTOSH KUMAR MAHADEVUNI & SAMPATH KUMAR MAHADEVUNI

LEGAL FRAMEWORK FOR MEDIATION IN INDIA – A CASE STUDY

Early in our civilization, it was common to there is a chance of a resolution through Mediation,
practice gathering around and discussing to resolve it motivates the parties to switch from Litigation to
conflicts between family members. At the village Mediation. If the judge believes the disagreement
level, disagreements were frequently brought may be resolved peacefully outside of court, the
before the panchayats, where a judgment was courts will send the cases to the mediation centers.
made after hearing from both sides. The mediation The Supreme Court of India acknowledged that,
method serves the similar purpose of allowing family despite the ADR framework already in existence,
members who are at odds to try to resolve their there needed to be more case management to carry
differences via dialogue rather than by going to court. out the procedures envisioned under section 89 of the
Peace and harmony among family members are of Civil Procedure Act 1908. The court has the authority
utmost importance in family relationships. to refer open matters to Mediation under section 89
Other Legal Provisions of Mediation in India of the Civil Procedure Law. The Law Commission of
: India had recommended Mediation as an alternative
Apart from the provisions mentioned above, to Litigation over ten years before the Civil Process
other legislations also refer various matters to Act modifications.
Mediation before making an application at the courts. The Civil Procedure – Mediation Rules 2003
Code of Civil Procedure, 1908 provides for mandatory Mediation under rule 5(f) (iii);
these allow the court to refer cases for Mediation
One of the significant developments of the
even when the parties are not ready for reference
mediation system in India is amending the Civil
for Mediation if there is an element of the settlement.
Procedure Code 1908, which refers all the pending
The Mediation and Conciliation Committee (MCPC)
court cases to Mediation if there is an element of
was constituted to regulate the mediation process as
the settlement. This Code was amended in 2002,
a method of dispute resolution.
providing for transferring all pending court cases
to Mediation. The amendment also encourages The top court attempts to promote India’s
Mediation for all family and personal matters due to mediation system with these most recent changes to
their sensitivity. the Civil Process Act and other laws. This will lessen
the strain on the courts and allow the judicial system
Alternative Dispute Resolution and
to concentrate on other crucial issues.
Mediation Rules, 2017
This is the latest legislation in the field of
6. DRAFTING OF MEDIATION LAW
Mediation. This is the legislation that governs the
system of Mediation in India. It describes the ethics BY APEX COURT:
of mediators, appointment, role, removal, the time The Supreme Court has stressed the significance
limit for completion of Mediation, etc. of India’s mediation mechanism. To include the
Real Estate (Regulation and Development) mediation provisions, it has established various
Act, 2016 mediation regulations. The Indian Government has
been urged to pass legislation and revise existing
Section 32(g) of the Real Estate (Regulation
laws to incorporate provisions for Mediation by the
and Development) Act, 2016, provides for the
Supreme Court, which has repeatedly emphasized
amicable settlement of disputes by establishing a
the value of ADR.
dispute resolution forum.
To reduce this scepticism, the Apex Court
of India appointed a committee to draft a law
5. MEDIATION – A POWERFUL TOOL that governs mediation proceedings. The drafted
WITH LEGAL BINDING: legislation will then be sent to the Government as
The Code of Civil Procedure, 1908, was legally a recommendation from the Supreme Court. The
amended in India to allow Mediation as a means of committee consists of renowned mediators from
alternative conflict resolution in civil proceedings. If all over India and is headed by Niranjan Bhat, who
will recommend a code of conduct for mediators,

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Issue 1 Vol-2  April 2023 AUTHORS : SANTOSH KUMAR MAHADEVUNI & SAMPATH KUMAR MAHADEVUNI

LEGAL FRAMEWORK FOR MEDIATION IN INDIA – A CASE STUDY

who are legal experts, and consider suggestions started after judicial recognition was made available
for legislation put forth by mediators from all over to it via the amendment of the Civil Procedure Code.
India. The mediators emphasized confidentiality, The Apex Court of India has repeatedly promoted the
the voluntary nature of the process, neutrality, importance of meditation by granting orders in favor
avoiding conflicts of interest, the enforceability of of it. The Mediation & Conciliation Project Committee
settlement, etc. The other members of the panel, (MCPC) and some other individual institutions
appointed by the Mediation and Project Conciliation are evolved and become involved in the judicial
Committee (MCPC) of the Supreme Court, included evaluation of Mediation and issues regarding the
Justices, former ASGs, senior advocates, and senior regulations, structure, principles, and methodology.
mediators. The Supreme Court of India has played an
A group of professionals in Mediation, such essential role in developing the laws that govern
as CAMP Bangalore, FCDR-Chennai, Maadhyam the concept of Mediation in India. The apex court
Delhi, retired judges, senior partners of law firms, and has taken unique steps in setting up committees
academicians from leading national and international and panels to draft the legislation and recommend
universities, has also suggested certain areas on amendments to the existing legislation to include
which the panel should emphasize upon. the provisions for Mediation. The then Hon’ble Chief
According to the Supreme Court, promoting Justice of India, Justice N.V. Ramana, was also very
Mediation as a viable dispute resolution method may keen on developing the mediation system in India.
be accomplished by creating and enacting legislation. From the discussion above, the time is ripe,
It also helps eliminate the contradictions in the rules and all the required factors favor a robust mediation
of several laws. framework. The authors strongly believe that the
necessary laws shall be made very soon and bring
7. CONCLUSION: them to fruition. The urgency in doing this can’t be
overemphasized, given the socio, economic and
Mediation as a process of dispute resolution
global impacts on Indian society due to overburdening
has its importance from the beginning. In modern
the Judiciary.
India, the concept of Mediation has taken a different
turn. The development of the mediation system

Santosh Kumar Mahadevuni

Law Student, Osmania University
advocatesantoshmahadev@gmail.com

Sampath Kumar Mahadevuni

Law Student, Osmania University
sampat.agrico@gmail.com

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