𝐂𝐨𝐧𝐜𝐞𝐩𝐭: Mediation is an interactive process where an impartial third party assists disputing parties in resolving conflicts. While mediation is otherwise a wholly voluntary process, the concept of mandatory pre-litigation mediation makes it compulsory for the disputing parties to mediate before they can adjudicate their claims in the Court. It is pertinent to note that mandatory pre-litigation mediation only requires the parties to give mediation a chance and it does not mandate them to settle through mediation.

𝐀𝐝𝐯𝐚𝐧𝐭𝐚𝐠𝐞𝐬:
1. Mediation is a win-win procedure, mandating it and making parties aware of its benefits can nudge them to arrive at an early resolution.

2. It decreases the workload of the judiciary, reduces pendency, and saves the time and cost involved in litigation.

3. The parties do not have to deal with the hesitation of suggesting mediation first due to the fear of appearing weak.

𝐃𝐢𝐬𝐚𝐝𝐯𝐚𝐧𝐭𝐚𝐠𝐞𝐬:
1. It is contrary to the very nature of the mediation proceedings which are supposed to be voluntary. Additionally, enforcing mandatory mediation between parties that have a disproportionate power dynamic can exacerbate the difference in their positions.

2. It may delay the final resolution of disputes as not every dispute would be suitable for mediation.

3. It is also being contended that mandating pre-litigation mediation amounts to limiting the parties’ right to approach the Court.

𝐋𝐞𝐠𝐚𝐥 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐬: Section 12A of the Commercial Courts Act, 2015 and the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 lay down the provision for parties to a commercial case to go for mediation before they can file a suit. The only exception here is if the parties require an urgent interim relief, they may straight away approach the Court.

Further, Section 6 (1) of the Mediation Bill, 2021 states that irrespective of the existence or non-existence of a Mediation Agreement, the parties in case of civil and commercial disputes would before filing a suit, take part in the mediation procedure as prescribed by the Bill. This Bill, however, also proposes an ‘Opt-out’ clause, whereby any party can opt-out of mediation after attending at least two mediation sessions if it does not wish to continue.

Notably, the Supreme Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010), stated that barring a few exceptions, all civil cases must be referred to an ADR process.