Mediation-India FAQs

1. What is the Mediation Act 2023 and what does it change?

India’s Mediation Act 2023 provides the first comprehensive statutory framework for mediation in India. Key changes: mediated settlement agreements are enforceable as court decrees; pre-litigation mediation is established as a formal step before disputes escalate; the Mediation Council of India is established to regulate mediators and institutions; and online mediation is formally recognised.

2. What is the difference between mediation counsel and the mediator?

The mediator is a neutral third party who facilitates the parties’ negotiation– they do not decide the outcome and have no authority to impose a resolution. Mediation counsel is the legal adviser representing one party in the mediation– preparing the client, advising on strategy and settlement range, supporting the client during the session, and documenting any agreement reached.

3. When should mediation be attempted before arbitration?

Mediation is worth attempting before arbitration where: the parties have an ongoing relationship to preserve; the dispute involves interests that a tribunal cannot address; both parties are willing to engage in good faith; or arbitration costs are disproportionate to the amount in dispute. Many India-UAE commercial contracts already include a tiered clause requiring mediation before arbitration– even where they do not, mediation can be agreed at any stage.

4. How is a mediated settlement agreement enforced in India?

Under the Mediation Act 2023, a mediated settlement agreement signed by the parties and authenticated by the mediator is final and binding, enforceable as a decree of court by application to the relevant civil court. Challenge is available only on limited grounds– fraud, corruption, impersonation, and disputes not eligible for mediation.

5. Is mediation appropriate for cross-border India-UAE commercial disputes?

Yes, and often preferable as a first step. Cross-border mediation for India-UAE disputes offers resolution in weeks rather than the months of arbitration, greater flexibility in outcomes, and the ability to preserve a commercial relationship.

6. What is CEDR certification and why does it matter?

CEDR– the Centre for Effective Dispute Resolution, London– is one of the leading international mediation accreditation bodies. CEDR-Certified Mediators are trained in the facilitative mediation model used in most international commercial mediations, and the certification is recognised by courts, institutions, and commercial parties internationally.