PRE-LITIGATION MEDIATION IN INDIA: A VIABLE ALTERNATIVE FOR AVOIDING EXPENSIVE & LONG DRAWN LITIGATION

For parties living in the States of Punjab, Haryana and Chandigarh, people can benefit from Pre-Litigation Mediation is available in the Mediation Center of High Court of Punjab and Haryana at Chandigarh where application for the same can be filed and process can be initiated.

Even Indians living abroad (NRI) can benefit from this.

What Is Pre‑Litigation Mediation?

Pre‑litigation mediation refers to the process where parties attempt to resolve a dispute through a neutral Mediator( Lawyer trained in mediation) even before filing a case in any Court. Unlike court litigation, Pre-litigation Mediation-

Ø Emphasizes dialogue and mutual understanding, rather than a win‑lose outcome.

Ø Mediators and parties generally maintain privacy, enabling candid conversations.

Ø Cost‑effective & faster: Legal battles are avoided, saving time and money.

Ø Flexible: The solution is tailor-made.

Legal Provisions

    Section 89 of the Civil Procedure Code provides for judicial referral to Alternative Dispute Resolution (ADR), including mediation—a step that established mediation as a credible alternative to lengthy litigation.

    Also, Section 12A of the Commercial Courts Act,  2015 has mandated pre‑institution mediation for commercial disputes exceeding Rs. 3 lakhs, with exceptions only if urgent interim relief is sought.

    A major legal milestone arrived with the enactment of the Mediation Act, 2023 —India’s first standalone law governing mediation. Coming into effect after September 2023, it provides a full institutional framework for mediation.

Key features of Mediation Act 2023

v Mediation Act provides for Voluntary pre‑litigation mediation for civil disputes, matrimonial disputes, commercial disputes (unless urgent court relief is required). Also, some criminal matters (which are compoundable in nature) can also be referred for mediation under section 6 but in such cases Settlement Agreement will not be enforceable as a Court decree and also, cases which involve rights of third parties have been mentioned to be “not fit for mediation” under the Act.

v Mediation Act has made mediation a Time-bound process as it provides that Mediation must conclude within 120 days, extendable by 60 days with mutual consent.

v  Settlement Agreements enacted among the parties under Mediation Act, 2023 are Enforceable and binding upon the parties under section 27 as they are treated as court decrees under the Code of Civil Procedure, and challengeable only on limited grounds like fraud or impersonation.

v Mediation Act, 2023 has established a “Mediation Council of India” which sets training standards, mediator accreditation and record‑keeping which is similar to International ADR.

v Under the Mediation Act, 2023 Mediation can also take place through online medium under section 30, if one of the parties is living abroad and one is in India.

Benefits of Pre‑Litigation Mediation for NRIs

NRIs (Non‑Resident Indians) face unique challenges in cross-border disputes. Pre‑litigation mediation offers several advantages:

1.     Convenience & Virtual Access - The Mediation Act supports online mediation, so NRIs can resolve issues remotely — No travel required.

2.     Reduced Costs & Time -   Litigation in India can be lengthy and expensive. Mediation offers a faster, less costly alternative, especially valuable when managing overseas financial and legal logistics.

3.      Relationship Preservation - Many NRI disputes involve family, property, or business relationships. Mediation enables amicable solutions and encourages continued collaboration.

4.     Enforceability with Clarity - Settlement Agreements under the Mediation Act are enforceable as court decrees, offering certainty even from abroad.

5.     Institutional Support & Neutrality – Mediation Act, 2023 provides that parties may avail services of recognized mediators which helps NRIs secure fair, transparent processes — even in high-value or cross-border disputes.

Why Pre‑Litigation Mediation is Important these days:

Ø Overburdened courts - India’s courts have millions of pending cases; mediation helps reduce this backlog.

Ø Legal modernization - The Mediation Act, 2023 institutionalizes and strengthens mediation.

Ø Globalization - As Indian commerce crosses borders and NRIs increasingly engage in Indian legal affairs, mediation offers a cross-border friendly platform.

Ø Judicial acceptance - Courts are increasingly referring parties to mediation and even mandating it where statutes require.

Conclusion

Pre‑litigation mediation is emerging as a vital pillar in India’s legal ecosystem —boosted by clear laws, institutional support, and judicial endorsement. Pre-litigation mediation is no longer just an alternative—it’s becoming a preferred path for resolving disputes in India, especially with the introduction of the Mediation Act, 2023. For NRIs, this presents a timely and effective way to handle legal issues back home without the burden of travel, lengthy court cases, or high legal expenses. The process is now more accessible, structured, and legally binding, offering real solutions to real problems—be it family disputes, property matters, or commercial disagreements. As India moves toward a more collaborative legal culture, pre-litigation mediation stands out as a practical, peaceful, and forward-thinking approach to justice.