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Jurisprudence, Interpretation and General Laws · Law relating to Arbitration, Mediation and Conciliation

Pre-Litigation Mediation and Mediation Process under the Mediation Act, 2023

Updated 11 October 2026 · Fact-checked

Pre-litigation mediation is a voluntary attempt, by mutual consent, to settle a civil or commercial dispute through a mediator before filing a suit (Section 5). Mediation starts as per Section 14, a mediator is appointed under Section 8, and it must finish within 120 days, extendable by up to 60 days (Section 18).

Understand Pre-Litigation Mediation and Mediation Process

Mediation is a process where parties try to settle a dispute with the help of a third person, the mediator. The mediator has no authority to impose a settlement. Section 3(h) says this, and it also covers terms like pre-litigation mediation, online mediation and conciliation.

Pre-litigation mediation means mediation before you file a suit or proceeding of a civil or commercial nature in a court or notified tribunal. Under Section 5(1), parties may take this step voluntarily and with mutual consent, whether or not a mediation agreement exists. The word "may" matters. Pre-litigation mediation under the Act is not compulsory in general. The proviso carves out one case: for commercial disputes of Specified Value, it is undertaken under Section 12A of the Commercial Courts Act, 2015 and its rules.

Who conducts it? Unless the parties agree otherwise, Section 5(3) says the mediator must be one of four types: registered with the Council; empanelled by a court-annexed mediation centre; empanelled by a Legal Services Authority; or empanelled by a recognised mediation service provider. Court-annexed centres and Legal Services Authorities must keep a panel of mediators (Section 5(5)).

There is also a special route. In a motor accident compensation application, if settlement under Section 149 of the Motor Vehicles Act is not reached, the Claims Tribunal shall refer the parties to mediation (Section 5(6)). A settlement goes to the Tribunal for consideration. If there is no settlement, the mediator forwards a non-settlement report to the Tribunal for adjudication.

The process then follows a clear timeline: commencement (Section 14), appointment of the mediator (Section 8), conduct (Section 15), a time limit (Section 18) and termination (Section 24). Learn these as a chain.

Key rules to remember

Voluntary pre-litigation mediation
Section 5(1): parties may, voluntarily and with mutual consent, mediate before filing a civil or commercial suit
Applies whether or not a mediation agreement exists. Commercial disputes of Specified Value follow Section 12A of the Commercial Courts Act, 2015.
Who conducts pre-litigation mediation
Section 5(3): mediator registered with the Council, or empanelled by a court-annexed centre, a Legal Services Authority, or a recognised mediation service provider
Subject to the parties agreeing otherwise.
Commencement of mediation
Section 14(a): existing mediation agreement - date a party receives notice from the initiating party. Section 14(b)(i): mediator of choice - date the mediator consents. Section 14(b)(ii): application to a service provider - date of appointment of the mediator
Choose the limb by how the mediation began.
Appointment of mediator
Section 8: parties choose the name and procedure; failing agreement, the initiating party applies to a mediation service provider, which appoints within 7 days
A person appointed on the parties' choice must communicate willingness within 7 days of receiving the communication (Section 8(5)).
Time limit
Section 18: complete within 120 days from the date fixed for first appearance before the mediator; extendable by agreement of parties by not more than 60 days
Maximum is therefore 180 days counted from the first appearance date.
Termination
Section 24: signing and authentication of settlement agreement; mediator's written declaration that further efforts are not justified; a party's written opt-out; expiry of the Section 18 time limit
Four modes.

How to solve Pre-Litigation Mediation and Mediation Process questions

Use this order for any question on pre-litigation mediation or the mediation process. It keeps your answer in the ICSI pattern: provision, facts, conclusion.

  1. 1Identify the stage the question tests: pre-litigation, commencement, appointment, conduct, time limit or termination.
  2. 2State the provision in plain words with the section number, for example Section 5(1) for voluntary pre-litigation mediation.
  3. 3Check the type of dispute. If it is a commercial dispute of Specified Value, bring in Section 12A of the Commercial Courts Act, 2015. If it is a motor accident claim, bring in Section 5(6).
  4. 4Apply the facts: how did the mediation begin, who was appointed and on what date. Pick the right limb of Section 14 or Section 8.
  5. 5For time questions, count 120 days from the date fixed for first appearance, then add any agreed extension up to 60 days.
  6. 6Write a one-line conclusion that answers exactly what was asked.

Quickest way: Stage-and-number check

When to use it: Use this for short-answer or timeline questions when you have little time.

  1. Write the stage and its section: 5 pre-litigation, 8 appointment, 14 commencement, 15 conduct, 18 time, 24 termination.
  2. Write the key number: 7 days for appointment and willingness, 120 days for completion, 60 days maximum extension.
  3. Apply to the facts in one or two lines and state the conclusion.

Common mistakes in Pre-Litigation Mediation and Mediation Process

  • Saying pre-litigation mediation is compulsory for all civil disputes.

    Students mix it with the Commercial Courts Act requirement for commercial disputes of Specified Value.

    Fix: Section 5(1) says parties may take it voluntarily and with mutual consent. Mention Section 12A only for commercial disputes of Specified Value.

  • Counting the 120 days from the date of the agreement or application.

    Students link the time limit with commencement under Section 14.

    Fix: Section 18 counts from the date fixed for the first appearance before the mediator.

  • Stating the extension as 60 days at the mediator's discretion.

    The words of Section 18(2) are skipped.

    Fix: The extension is as agreed by the parties and cannot exceed 60 days.

  • Giving one commencement date for all cases.

    Students memorise only the notice rule.

    Fix: Use Section 14: notice date if an agreement exists; mediator's consent date if the parties chose the mediator; date of appointment if a service provider was approached.

  • Forgetting that a mediator is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

    Students assume mediation follows court procedure.

    Fix: State Section 15(5). Mention that the mediator must be independent, neutral and impartial (Section 15(2)).

  • Omitting the non-settlement report in motor accident claims.

    Students stop at the referral to mediation.

    Fix: Add that a settlement goes to the Claims Tribunal for consideration and a non-settlement report goes back for adjudication (Section 5(7) and (8)).

Worked examples

Example 1

Meera Textiles Ltd. and Rao Dyes Pvt. Ltd. have a contract with a clause to mediate disputes. A dispute arises. On 1 March, Meera Textiles sends notice to Rao Dyes referring the dispute to mediation. Rao Dyes receives it on 4 March. The mediator is appointed later and the first appearance is fixed for 20 March. State when mediation is deemed to commence and the latest date by which it should ordinarily be completed without extension.

Show the solution
  1. Provision: Section 14(a) applies where an existing agreement provides for mediation. Mediation commences on the date a party receives notice from the party initiating mediation.
  2. Facts: there is a mediation clause. Rao Dyes received the notice on 4 March.
  3. So mediation is deemed to commence on 4 March.
  4. Time limit: Section 18(1) counts 120 days from the date fixed for the first appearance, which is 20 March, not 4 March.
  5. From 20 March: 11 days remain in March (21 to 31), then April 30, May 31, June 30, which is 102 days to 30 June. 18 more days gives 18 July.
  6. So the 120th day is 18 July.

Answer: Mediation commences on 4 March (Section 14(a)). It should ordinarily be completed within 120 days from 20 March, that is by 18 July (Section 18(1)). The parties may agree to extend it by not more than 60 days (Section 18(2)).

Example 2

Two parties have no mediation agreement and cannot agree on a mediator. One party wants to settle a civil dispute through mediation before filing a suit. Explain whether they can do so and how a mediator will be appointed.

Show the solution
  1. Provision: Section 5(1) allows parties, whether or not a mediation agreement exists, to take steps for pre-litigation mediation before filing a suit of civil or commercial nature. It must be voluntary and with mutual consent.
  2. Facts: no agreement exists, but the Act does not need one. Both parties must consent to mediate.
  3. Appointment: under Section 8(2) the parties are free to agree on the mediator and procedure. They have not agreed.
  4. Under Section 8(3), the party seeking mediation applies to a mediation service provider for appointment of a mediator.
  5. Under Section 8(4), the provider must, within 7 days, appoint a mediator from its panel with his consent where the parties cannot agree.
  6. Section 5(3) requires that the mediator conducting pre-litigation mediation is of the listed types, including one empanelled by a recognised mediation service provider.

Answer: Yes. Absence of a mediation agreement does not bar pre-litigation mediation, provided both parties consent (Section 5(1)). The party seeking mediation applies to a mediation service provider, which appoints a mediator from its panel, with his consent, within 7 days (Section 8(3) and (4)).

Exam tips

  • Learn the section numbers with their one-line headings: 5, 8, 14, 15, 18, 24, 30. Examiners reward a correct section citation.
  • In date-based questions, write the starting date, the counting rule and the end date as separate lines.
  • In case-study questions, first check whether the dispute is a commercial dispute of Specified Value or a motor accident claim, since these have special rules.
  • Use the three-part structure: provision, application to facts, conclusion. Keep the conclusion to one sentence.
  • Do not mention repealed laws as being applicable to mediation. Say only that the mediator is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

Practice questions from Law relating to Arbitration, Mediation and Conciliation

Pre-Litigation Mediation and Mediation Process in other exams

The same ground in other exams, if you are preparing for more than one or want another angle on it.

Pre-Litigation Mediation and Mediation Process: frequently asked questions

Is pre-litigation mediation mandatory under the Mediation Act, 2023?

Generally no. Section 5(1) says parties may voluntarily and with mutual consent attempt it before filing a civil or commercial suit. Commercial disputes of Specified Value follow Section 12A of the Commercial Courts Act, 2015.

What is the time limit for completing mediation?

Section 18 requires completion within 120 days from the date fixed for first appearance before the mediator. The parties may agree to extend this by a further period not exceeding 60 days.

How does a mediation start under the Act?

Section 14 sets the date of commencement. With an existing agreement it is the date a party receives notice. If the parties chose a mediator it is the date the mediator consents. If a service provider is approached it is the date the mediator is appointed.

Can a foreign national be a mediator?

Section 8(1) says that, unless the parties agree otherwise, a person of any nationality may be appointed. A mediator of foreign nationality must have the qualification, experience and accreditation as specified.

How can mediation terminate?

Section 24 lists four ways: signing and authentication of the mediated settlement agreement; the mediator's written declaration that further efforts are not justified; a party's written notice opting out; and expiry of the Section 18 time limit.