Author – Aditya Srivastava 4th semester BBA LLB student at Babu Banarasi Das University 

Introduction 

India’s legal landscape has long been burden with the staggering problem of pendency of cases. As per data from National judicial data grade over 5 crore cases are pending across various courts in India. In this context alternate dispute resolution mechanism has emerged as essential tool for reducing the burdens on court while facilitating quicker and more effective resolution of dispute. Mediation in particular has garnered considerable attention for its informal, flexible and party- centric approach. 

Understanding its urgent need to institutionalize and strengthen mediation in India the mediation Act 2023 was enacted by Indian parliament and it came into force in September 2023. This landmark legislation aims to provide a comprehensive legal framework for domestic and international mediation. 

Historical evolution

 Mediation has a rich historical evolution , rooted in ancient civilizations where informal dispute resolution was preferred over adversarial methods . In early societies such as those in India , China and Mesopotamia , elders or community leaders acted as mediators to preserve harmony . In India, the panchayat system played a vital role in resolving disputes through consensus. Similar practices were seen in Confucian China and under Islamic Sulh tradition . During the colonial era, particularly  under British rule in India , formal litigation systems overshadowed traditional mediation . However , mediation began to regain prominence in the 20th century with global advocacy for ADR . In India, legal recognition came through the Arbitration and Conciliation Act , 1996 ,and the promotion of mediation by the judiciary under Sec 89 of the CPC . The enactment of the mediation act ,2023 ,marked a significant milestone by institutionalizing mediation as a formal and enforceable mechanism , reflecting a full- circle return to India’s traditional roots of harmonious dispute settlement.

Background 

Prior to the enactment of mediation act, mediation in India was largely governed by several provision catered across various law such as: 

1. Section 89 of CPC, 1908 this allow courts to refer dispute to mediation. 
2. Arbitration and conciliation act 1996 which deal primary with arbitration and consolation but included limited provisions for mediation. 
3. Companies Act 2013 which empowered National company Law tribunal to refer matters to mediation .
4. Commercial court act 2015 this mandated pre institution mediation for commercial dispute. 

However, there was no unified standalone legislation dedicated to mediation. The lack of legal clarity, standard procedures and recognition of mediated settlement agreement led to underutilization of meditation. The mediation act 2023 seeks to address these gaps and streamline the mediation process in India.

Objectives And Purpose Of Mediation Act 2023 

The mediation act 2023 has been enacted with the following key objective. 

1. To promote and facilitate mediation as a preferred mode of dispute resolution. 
2. To institutionalize mediation by recognizing meditation service provider and mediators through regulation. 
3. To establish a mediation council of India for oversight and standardization.
4. To make pre-litigation mediation mandatory in certain types of civil and commercial dispute. 
5. To provide enforceability to mediated settlement agreement akin to court decree.
6.  To lay down a code of conduct and ethical standards for mediators. 
7. Its aim is regulate the cross border and online mediation process. 

Salient features of mediation act 2023 

1. The Act applies to mediation in India including both domestic and international mediations.
2. The Act mandates parties to attempt pre- litigation mediation before approaching courts or tribunals for civil or commercial matters
3. The Act recognizes and facilitates online mediation , including the submission of documents , communication and settlement agreements through digital platforms .
4. A statutory body known as the Mediation Council Of India is established to regulate and oversee mediation service providers , accrediting mediators and promoting mediation.
5. Settlement agreements arising from mediation are treated as equivalent to court decrees and are enforceable under the Civil Procedure Code, 1908.
6. Mediation under  the Act is consensual , and parties can withdraw at any stage before the signing of a settlement agreement.
7. The act lists specific category of disputes which are not suitable for mediation .

Mediation Act ,2023 :The Need Of Hour 

India has over 5 crore pending cases across various courts as of 2023. The enactment of the act was crucial for several reasons namely:

1. There was no uniform statutory framework before the enactment of this Act. Different High courts followed varied rules, leading to inconsistencies and confusion.
2. A structured mediation framework aims to reduce the backlog in courts by encouraging early and amicable resolution of disputes.
3. Traditional litigation is time consuming and expensive. Mediation offers a faster and more economical alternatives .
4. For India to become a preferred business destination , it need a reliable dispute resolution mechanism . Mediation aligns with the goal by ensuring contractual and commercial certainty.

Important provisions of mediation act ,2023

• Section 4  Mediation Agreement – A mediation agreement can be a clause within a contract or a separate agreement . it must be in writing , which includes electronic communications recognized under the Information Technology Act ,2000.
• Section 5 Pre -litigation mediation –  Parties may voluntarily undertake mediation before initiating civil or commercial litigation . However , for commercial  disputes of specified value, pre-litigation mediation is mandatory under the Commercial Courts , Act ,2015.
• Section 7 Referral by court or tribunal – Courts or tribunals may refer parties to mediation at any stage of proceedings , regardless of the existence of a mediation agreement . 
• Section 8 Interim reliefs- Parties can seek interim reliefs from courts in exceptional circumstances either before the commencement or during the mediation process. The Act does not specify what constitutes “ exceptional circumstances” , leaving it to judicial interpretation.
• Section 19 Mediation settlement agreement – A mediation settlement agreement , signed by the parties and authenticated by the mediators, is final and binding . It is enforceable as a court decree an can be challenged only on grounds of fraud , corruption , impersonation or if the subject matter is not fit for mediation.
• Section 28 Mediation council of India – The Act establishes mediation council of India to regulate and oversee mediation practices. 

Advantages Of Mediation Act ,2023

1. By mandating pre- litigation mediation, the Act helps reduce the burden on courts and ensures  only genuinely unresolved matters to litigation.
2. Mediation is much cheaper than court proceedings and arbitration.
3. By ensuring that all proceedings are confidential , the Act builds trust in the mediation process and protects the reputation of parties involved ,especially in sensitive commercial matters.
4. Mediation allows for a flexible process where parties can determine the procedure , unlike rigid courtroom protocols.
5. Even though pre-litigation mediation is mandatory , participation in the settlement process remains voluntary.
6. It is less adversarial and focuses on preserving relationships , which are vital in family , business and community disputes.
7. The formal recognition of online mediation makes the process accessible to parties across geographical boundaries, reducing logistical burdens and expanding access to justice.

Disadvantages Of Mediation Act ,2023

1. Making pre-litigation mediation mandatory could result in delays, especially when parties do not intend to resolve matters but are compelled to go through the motions.
2. Despite formal recognition , the general public and many legal practitioners are still unaware of the mediation process. 
3. The act excludes family disputes such as marriage and inheritance matters, which could benefit from non-adversarial nature of mediation. 
4. While mediation agreements are enforceable like court decrees, challenges to enforcement, can become time-consuming .
5. In cases where one party holds more powers , mediation may not be truly voluntary. 
6.  The Act creates confusion due to overlap with existing laws such as the arbitration and conciliation Act, 1996 .

Recommendations And Suggestions

1. The government and legal institutions must conduct nationwide awareness campaigns to educate citizens about the benefits of mediation .Law schools and bar associations must integrate mediation into their curriculum and training.
2. The Act should be amended to include family ,marriage and inheritance . These are areas where mediation has proven effective in maintaining relationships.
3. There is a need of large scale training program for mediators , lawyers and judicial officers to build capacity and ensure professionalism of mediation.
4. The Act should incorporate robust monitoring system to access quality of mediation and ensure compliance.
5. Stronger safeguards should be introduced to protect weaker parties in mediation.
6. The online mediation portal should be developed for registration , allocation and tracking of mediation cases for efficiency.

Conclusion 

The mediation Act , 2023 is a landmark in India’s legal evolution, aiming to streamline and encourage mediation as an effective dispute resolution mechanism. It reflects India’s commitment to align with global best practices in ADR and creating a justice system that is accessible, affordable, and amicable.

 However , for the Act to succeed in practice, it must overcome challenges related to awareness, capacity and implementation. With the right institutional support , continuous legal education , and amendments to broaden its scope . The Mediation Act , 2023 can serve as a game-changer in reducing litigation burdens and fostering a culture of cooperative conflict resolution.