Mediation[1] in India, a quiet evolution is reaching its apex. India has historically leaned toward litigation as the default mechanism for dispute resolution. However, with mounting court pendency and growing global alignment toward amicable dispute resolution, mediation has gradually emerged from the shadows of its more prominent Alternate Dispute Resolution (“ADR”) cousin, arbitration. The enactment of the Mediation Act, 2023 (Act No. 21 of 2023) (“Mediation Act of 2023” and/or “Act”), notified in the Gazette of India on 15th September 2023, is a milestone that formalises and strengthens the framework for mediation in India.
This article aims to unpack the Mediation Act of 2023 by analysing its salient features, statutory architecture, objectives, and implications. It also examines the interplay between the Mediation Act and existing legal mechanisms, while raising pertinent considerations for practitioners and policymakers alike.
The background
Mediation services in India are available through private ADR centres, dedicated mediation centres, as well as court-established mediation facilities known as court-annexed mediation centres. According to statistics released by the National Legal Services Authority for the year 2021–22, there were 464 ADR centres in the country (of which 397 were operational), 570 mediation centres, 16,565 trained mediators, and nearly 53,000 disputes were resolved via mediation during that period.
Several nations, such as Australia, Singapore, and Italy, have enacted standalone legislation focused specifically on mediation[2]. In India, the idea of enacting a dedicated mediation law was therefore been recommended on multiple occasions by the Supreme Court in 2019[3], and earlier by the High-Level Committee on institutional arbitration reform in 2017. In 2020, a committee constituted by the Supreme Court drafted a model legislation[4] intended to formalize mediation as a legitimate mode of dispute resolution.
The Mediation Bill, 2021, was passed, which aimed to encourage the use of mediation, especially institutional mediation, and to establish a legal framework for the recognition and enforcement of settlement agreements resulting from mediation. The Bill was under review by the Standing Committee on Personnel, Public Grievances, Law and Justice, and eventually received the assent of the President on the 14th September, 2023.
The legislative genesis and objectives
Prior to this legislation, mediation in India was governed by scattered references, most notably under Section 89 of the Code of Civil Procedure, 1908, and in a limited way under the Arbitration and Conciliation Act, 1996. However, these provisions lacked coherence, enforceability, and a centralised regulatory framework.
The Statement of Objects and Reasons accompanying the Mediation Act of 2023 notes:
“…to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and cost-effective process…”
This aligns with India’s broader goal to position itself as a global hub for dispute resolution, and to meet its commitments under international instruments such as the Singapore Convention on Mediation (India is a signatory but yet to ratify).
Key features of the Mediation Act of 2023
The Mediation Act is divided into 11 Chapters and 65 Sections, with a dedicated Schedule relating to mediation under other enactments. Here are some of its defining features:
Scope of the Act (Sections 1 and 2)
Section 1[5] of the Act makes it clear that its rules govern every mediation, whether purely domestic or involving foreign parties, so long as the process takes place within India’s borders. Section 2[6] then specifies that any mediation held in India falls under the Act if it satisfies at least one of these conditions: all participants are Indian nationals; the parties have expressly agreed to follow the Act’s procedures; or it is an international mediation in which one or more parties are foreign nationals.
Section 2 (iv) of the Act limits its scope by excluding non-commercial disputes involving the Central or State Governments, including any agency, public authority, or corporation under their control. The term ‘commercial’ is defined in line with Section 2(1)(c) of the Commercial Courts Act, 2015.
Mandatory pre-litigation mediation (Section 5)
Section 5[7] of the Act allows parties, regardless of whether a mediation agreement exists, to attempt pre-litigation[8] mediation before filing any suit or proceeding of a civil or commercial nature, unless urgent interim relief is sought. This is a key aspect of the Act, and it is hoped that many parties will choose to voluntarily choose mediation by mutual agreement, thereby avoiding the complexities and strain associated with litigation and promoting early settlement.
Exception: Mediation under this Act cannot be used to resolve disputes or matters that are listed in the First Schedule[9]. For example, matters involving criminal offences or affecting rights of third parties or taxes are excluded under Section 6[10].
Court-directed mediation (Section 7[11])
Even if the dispute is not settled through pre-litigation mediation under Section 5(1), the court or tribunal can still refer the parties to mediation at any stage of the proceedings. Section 7(2) authorizes courts and tribunals to issue appropriate interim orders to safeguard the interests of the parties, provided they have referred the matter to mediation under Section 7(1).
Appointment of Mediators under the Act
Section 8 of the Act grants the parties full freedom to appoint a mediator of their choice, including individuals of foreign nationality. However, if the selected mediator is not an Indian national, they must meet the qualifications, experience, and accreditation standards prescribed under the Act. If the parties are unable to agree on a mediator, the party initiating the mediation can apply to a recognized “mediation service provider” (i.e., a designated mediation institution) for the appointment. Upon receiving such a request, the mediation service provider must, within seven days, appoint either the mutually agreed mediator or, if none is named, select one from its panel.
Voluntary and confidential process (Sections 22[12] and 23[13])
Mediation remains a voluntary process, and either party may withdraw at any time before signing the settlement agreement. Section 22 of the Act underscores the fundamental principle of confidentiality in all mediation proceedings. It imposes a strict obligation on all participants, including the parties, the mediator, and the mediation service provider, not to disclose any information arising from or related to the mediation. The scope of this confidentiality is broad and includes, but is not limited to:
- Any statements, acknowledgements, admissions, proposals, opinions, suggestions, promises, or apologies made during the mediation;
- The acceptance of, or willingness to consider, settlement proposals;
- Any documents prepared solely for the purpose of mediation; and
- All communications made in the context of the mediation process.
Additionally, the Act expressly prohibits the making or maintenance of audio or video recordings of any mediation session, regardless of whether it is conducted in person or through virtual means.
Furthermore, the provision bars the introduction of any mediation-related information or communication as evidence in any court or tribunal proceedings. Courts and tribunals are also restrained from relying upon or taking into account such materials. Importantly, no party involved in the mediation, including experts, advisers, or any other stakeholder, may be compelled to disclose the contents of any mediation communication, including offers, counteroffers, or the substance of negotiations.
Exceptions: While confidentiality is a cornerstone of mediation under the Act, certain limited exceptions have been carved out to balance transparency, public interest, and professional accountability. These exceptions are as follows:
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- For registration, enforcement, or challenge of MSA: Disclosure is permitted where necessary to register, enforce, or challenge a mediated settlement agreement[14].
- Allegations of professional misconduct by the Mediator: Information may be disclosed where it is relevant to substantiate or refute a claim or complaint regarding the professional conduct of a mediator[15].
- Public interest disclosures: Section 23(2) permits disclosure of information in the following specific circumstances:
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- Where a party makes a threat or declares an intent to commit an offence under any prevailing law;
- Where the information pertains to incidents of domestic violence or child abuse; and
- Where the disclosure reveals an imminent threat to public health or safety.
These narrowly tailored exceptions ensure that while the confidentiality of mediation remains protected, it does not shield unlawful or harmful conduct.
Recognition of online mediation (Section 30[16])
The Act formally allows for online mediation, recognising digital means for conducting mediation proceedings, a significant step in improving accessibility and efficiency, particularly in post-pandemic times. It can be conducted at any stage of the mediation process, as long as both parties consent to it in writing.
Online mediation may be conducted through various secure digital means, including video or audio conferencing, encrypted emails, or protected chat platforms, provided that the confidentiality and integrity of the proceedings are preserved. Consequently, any settlement agreement reached through such online mediation holds the same validity and enforceability as one achieved through traditional, in-person mediation.
Time-bound framework (Section 18[17])
Mediation must ordinarily be completed within 120 days from the date of first appearance, with a possible extension of 60 days. This encourages timely resolution and discourages procedural delays.
Enforceability of Mediated Settlement Agreements (“MSAs”) (Section 27[18])
An MSA, once signed by parties and authenticated by the mediator, is binding on the parties and shall be enforceable in the same manner as a court decree under the Code of Civil Procedure, 1908. This grants finality to mediation outcomes and enhances trust in the process.
Challenge mechanism: Section 28[19] allows parties to challenge an MSA on limited grounds of fraud, corruption, impersonation, or disputes not fit for mediation. The aggrieved party is to file an application before the Court or Tribunal notified by the Central and/or the State Government having jurisdiction to try the matter. It is to be noted that a party can challenge a mediated settlement agreement only within 90 days from the date it receives a copy of the agreement[20]. However, if the court or tribunal is satisfied that there was a valid reason for the delay, it may allow the challenge to be filed within an additional 90 days.
Establishment of the Mediation Council of India (“MCI”) – A step towards institutionalising Mediation in India (Chapter VIII[21]; Sections 31–39)
The Mediation Act of 2023 marks a significant turning point in India’s dispute resolution framework by formalising the structure for mediation as an effective and reliable mechanism. One of the most noteworthy provisions under this Act is the establishment of the MCI, under Section 31[22], aimed at overseeing and regulating the mediation ecosystem in the country.
Establishment and legal status of the Council: Under Section 31(1), the Act mandates the Central Government to establish the MCI by way of notification. This Council is entrusted with the responsibility of discharging duties and performing functions that promote, support, and regulate mediation practices across India.
The Council is structured as a body corporate with perpetual succession and a common seal, empowering it to acquire and dispose of property, enter into contracts, and initiate or defend legal proceedings in its own name[23]. Its head office will be located in Delhi, unless notified otherwise, and the Council may set up regional or international offices in consultation with the Central Government[24].
Composition of the Council (Section 32): The Council consists of a mix of professionals, government representatives, and sectoral experts. Its members include:
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- A Chairperson, to be appointed by the Central Government, who must be a person of high standing and professional expertise in fields such as law, mediation, public affairs, or administration.
- Two members with legal or academic expertise in mediation or ADR mechanisms.
- Ex-officio members: senior government officials from the Ministry of Law and Justice and the Ministry of Finance.
- A Chief Executive Officer (CEO), who also acts as the Member-Secretary.
- One part-time member representing a recognised industry or commerce body.
The non-ex officio members serve a four-year term, with eligibility for reappointment. However, an age cap is prescribed: 70 years for the Chairperson and 67 years for other members. If the Chairperson is appointed on a part-time basis, at least one of the other members must serve in a full-time capacity[25].
Safeguards for independence and continuity: Sections 33[26] to 35[27] provides safeguards to ensure the proper functioning and continuity of the Council. It clarifies that the validity of Council decisions will not be affected by procedural irregularities or vacancies[28]. Members may resign in writing, but must usually serve a notice period unless waived by the Government[29].
Importantly, the Central Government retains the power to remove members for specific reasons, including insolvency, misconduct, or incapacity, but must follow principles of natural justice by informing the member of the charges and allowing a hearing[30].
Operational framework and expertise: To support its functioning, the Council is empowered to appoint experts and set up committees as needed under Section 36[31]. A Chief Executive Officer will be responsible for daily administration, supported by a Secretariat comprising officers and staff whose terms of service will be defined by future regulations[32]. The Government may initially depute officers to support the Council until its full staffing structure is in place.
Key functions of the Mediation Council (Section 38[33]): The Mediation Council is tasked with a broad mandate to promote, develop, and regulate mediation practices in India. Some of its core functions include:
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- Promoting domestic and international mediation;
- Framing guidelines for continuous training, certification, and assessment of mediators;
- Laying down standards for ethical and professional conduct of mediators and service providers;
- Specifying procedures for registration, renewal, suspension, or cancellation of mediators;
- Supporting academic and professional engagement through workshops, collaborations with law firms, universities, and mediation institutes;
- Recognising and monitoring mediation institutes and service providers, including setting recognition criteria;
- Maintaining an electronic repository of mediated settlement agreements;
- Publishing research, data, and policy material related to mediation.
These responsibilities position the Council not just as a regulatory body, but as a national think tank and facilitator for building a robust mediation culture in India.
Accountability and oversight: As per Section 39[34], the Council must prepare and submit an annual report on the implementation of the Act to the Central Government. The Government, in turn, may take any additional measures it deems necessary to ensure the Act’s effective implementation.
In short, this body will play a pivotal role in professionalising mediation as a standalone discipline.
Mediation Service Providers and Mediation Institutes (Chapter IX)
This part of the Mediation Act basically talks about who can officially provide mediation services[35] and what their job includes[36]. According to the Act, a mediation service provider can be:
- An organisation that offers mediation and is recognised by the Mediation Council;
- Legal aid authorities already set up under the law;
- Mediation centres attached to courts;
- Or any other body that the government may decide to include.
These groups are considered official providers once they’re recognised by the Council.
As per Section 41 of the Act, their responsibilities include:
- Keeping a list of trained mediators;
- Appointing mediators when someone needs help with a dispute;
- Providing space, admin support, and facilities to make mediation easy and smooth;
- Making sure mediators act ethically and professionally;
- Helping parties register their mediation agreements so they’re legally valid;
- Doing any other task the law might assign.
The Mediation Council can also recognise special institutions (called mediation institutes[37]) to help carry out these duties and support the whole mediation system.
In simple terms, this chapter helps build a proper system around mediation. It ensures that (a) Mediators are qualified and ethical, (b) people have access to good facilities and support, and (c) there’s a trusted process behind every mediation effort. It’s all about making mediation more reliable, accessible, and professional across the country.
Community Mediation and Government Disputes (Chapter X)
The Act provides for community mediation[38] especially for disputes affecting public harmony. If there is a dispute that could disturb peace and harmony among residents or families in a local area, it can be resolved through community mediation, but only if both parties agree in advance. To start the mediation, either party can apply to:
- the Legal Services Authority (if it exists in the area), or
- the District Magistrate (“DM”) or Sub-Divisional Magistrate (“SDM”) (if there is no such authority).
Once an application is received, the Authority, DM, or SDM will appoint a panel of three community mediators to help resolve the dispute amicably and peacefully. The settlement agreement reached through community mediation is only meant to promote peace and harmony; it cannot be enforced like a court judgment or decree.
Comparative perspective and institutional growth
India’s institutional mediation ecosystem is still in its infancy when compared with jurisdictions like Singapore or the UK. With the rise of bodies like CAM (Centre for Advanced Mediation Practice) and court-annexed centres (e.g., Delhi High Court Mediation Centre), momentum is building. The Mediation Act of 2023 creates space for further institutionalisation by integrating existing centres within its framework and bringing them under regulatory oversight. International best practices are clearly visible in the design of the Act, including provisions reminiscent of the UNCITRAL Model Law on Mediation and the Singapore Convention on Mediation (2019).
Challenges and the road ahead
Despite its strengths, the Act’s effective implementation faces several hurdles:
- Awareness and cultural acceptance: A significant section of litigants still views mediation as secondary to litigation. Changing this mindset requires sustained outreach.
- Capacity building: There is a need to rapidly train and certify qualified mediators who understand both the legal and interpersonal dimensions of dispute resolution.
- Overlap and conflict with existing laws: Questions remain regarding the interaction of the Mediation Act with sectoral laws (e.g., Consumer Protection Act, 2019) and existing judicial precedents.
- Further clarification required:
- Although the Act grants the authority to issue interim orders under Section 7, it does not specify the extent or nature of such orders. This contrasts with Section 9 of the Arbitration and Conciliation Act, 1996, which clearly outlines the framework for interim protective measures in arbitration proceedings.
- Although the objective of setting a fixed 180-day timeline under Section 18 of the Act is to promote procedural efficiency and discourage undue delay by either party, the Act does not clarify the course of action once this period lapses. It may have been helpful if the Act, similar to arbitration laws, offered guidance on how mediation could be extended, possibly through an application to the court registrar rather than requiring a formal court motion.
- A combined reading of Sections 27 and 28 raises an important question regarding the interaction between enforcement and challenge proceedings. Specifically, if a party initiates a challenge to a mediated settlement agreement under Section 28, does that automatically halt enforcement proceedings commenced under Section 27? The Act does not expressly address this issue. By contrast, the Arbitration and Conciliation Act, 1996 (as amended in 2015) makes it clear that the mere filing of a challenge does not result in an automatic stay on enforcement. In the absence of similar clarity in the Mediation Act, the matter remains unresolved and will likely require judicial interpretation by Indian courts.
- India is a signatory to the Singapore Convention on Mediation, which establishes a uniform legal framework for the enforcement of settlement agreements resulting from international mediation. However, India has not yet ratified the Convention. Under the current framework of the Mediation Act, while a mediated settlement agreement is accorded the same status as a court decree, its applicability in the context of international mediation appears limited. Specifically, Section 2 of the Act confines its scope to international mediations conducted within the territory of India. This raises a concern regarding the enforceability of settlement agreements arising from mediations conducted outside India, even if one or more parties are Indian. A reading of Section 2 in conjunction with Section 27 suggests that the Act does not currently provide a mechanism for enforcing such cross-border settlement agreements. To address this gap, it may be prudent for Parliament to consider ratifying the Singapore Convention on Mediation and to introduce the necessary legislative amendments to bring the Act in line with the Convention’s enforcement framework.
Implications for stakeholders
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- For lawyers: There is now a clear career path for professionals wishing to be accredited mediators. Moreover, lawyers will play a crucial role in guiding clients through the mediation process and ensuring enforceable settlements.
- For judiciary: Courts are expected to respect and reinforce the mandate of pre-litigation mediation, and also refer ongoing cases to mediation where appropriate.
- For corporates: With rising commercial disputes, this Act offers businesses a cost-effective, confidential, and efficient mechanism to preserve relationships and reputations.
- For citizens: Mediation becomes an accessible and less intimidating route for the resolution of familial, neighbourhood, and civil disputes.
Conclusion: a cultural shift in the making
The Mediation Act of 2023 is more than just legislative reform; it is a cultural invitation to rethink conflict resolution in India. It seeks to nurture a paradigm where disputes are seen not as battles to be won, but problems to be solved collaboratively. Its success, however, will depend on coordinated efforts, judicial endorsement, institutional support, professional training, and above all, public confidence. If implemented well, India may well find itself leading the charge in mediation, just as it has done in arbitration reforms over the past decade.
FOOTNOTES…………………………………………………………………………………………………………………………………………………………………………………………………………………..
[1] Mediation is a consensual method of dispute resolution where the parties, with the guidance of a neutral third party known as a mediator, seek to resolve their conflict. Rather than dictating an outcome, the mediator facilitates dialogue and fosters a constructive environment for the parties to arrive at a mutually acceptable solution. The process is shaped by the parties’ preferences, without adherence to rigid procedural rules. Mediation offers several advantages, including its non-confrontational and voluntary nature, procedural flexibility, confidentiality, quicker resolution timelines, cost efficiency, and the binding nature of agreements reached by mutual consent. As a form of alternative dispute resolution, it also contributes to alleviating the workload of courts.
[2] Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India (Chair: Retd. Justice B.N. Srikrishna), 30 July 2017.
[3] M.R. Krishna Murthi vs. New India Assurance Co. Ltd., Supreme Court of India, Civil Appeal Nos. 2476-2477 of 2019, 5 March 2019.
[4]‘Designing the Future of Dispute Resolution: The ODR Policy Plan for India’, NITI Aayog, October 2021.
[5] “Preliminary”
[6] “Application”
[7] “Pre-litigation mediation”
[8] Pre-litigation mediation refers to the process wherein individuals or entities involved in a potential civil or commercial dispute seek to settle their differences through mediation before initiating any formal legal action or filing a case in an Indian court.
[9] The First Schedule of the Act outlines an illustrative list of disputes that are deemed unsuitable for resolution through mediation. These include cases involving serious and well-defined allegations of fraud; disputes where one of the parties is a minor or of unsound mind; criminal prosecutions; matters that are contrary to public policy or offend basic principles of morality or justice as recognized under existing laws; and disputes that could impact the legal rights of third parties.
[10] “Disputes or matters not fit for mediation”
[11] “Power of court or tribunal to refer parties to mediation”
[12] “Confidentiality”
[13] “Admissibility and privilege against disclosure”
[14] Section 22(4)
[15] Section 23(1)
[16] “Online mediation”
[17] “Time-limit for completion of mediation”
[18] “Enforcement of mediated settlement agreement”
[19] “Challenge to mediated settlement agreement”
[20] Section 19(3)
[21] “Mediation Council of India”
[22] “Establishment and incorporation of Mediation Council”
[23] Section 31(2)
[24] Sections 31(3) and (4)
[25] Section 32(2)
[26] “Vacancies,etc., not to invalidate proceedings of Council”
[27] “Removal”
[28] Section 33
[29] Section 34 “Resignation”
[30] Section 35
[31] “Appointment of experts and constitution of Committees”
[32] Section 37
[33] “Duties and functions of Council”
[34] “Monitoring and reporting”
[35] Section 40 “mediation service provider”
[36] Section 41 “Functions of mediation service providers”
[37] Section 42
[38] Section 43
