Arbitration, Mediation and Conciliation · Mediation: An Introduction and its Process along with Rules

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

Updated 11 October 2026 · Fact-checked

A mediation agreement is a written agreement to submit disputes to mediation (section 4). Pre-litigation mediation (section 5) is a voluntary, mutually consented attempt to settle a civil or commercial dispute before filing a suit. Disputes in the First Schedule are not fit for mediation (section 6). Answer by stating the provision, applying the facts and concluding.

Understand Pre-Litigation Mediation and Mediation Agreement

Mediation is a process where parties try to reach a settlement with the help of a third person, the mediator, who has no authority to impose a settlement (section 3(h)). The Act treats pre-litigation mediation, online mediation, community mediation and conciliation as mediation if they fit this description.

A mediation agreement is the starting point when parties have agreed in advance. Under section 4 it must be in writing. It can be a mediation clause in a contract or a separate agreement. It can cover disputes that have arisen or may arise, and it can be made before or after the dispute arises.

Pre-litigation mediation is mediation tried before a suit or proceeding of civil or commercial nature is filed. Section 5(1) says it applies whether or not a mediation agreement exists. It is voluntary and needs mutual consent. Do not write that the Act makes it compulsory. The exception is a commercial dispute of Specified Value, where mediation follows section 12A of the Commercial Courts Act, 2015 and its rules.

Not every dispute can be mediated. Section 6 bars mediation of matters in the indicative list in the First Schedule. The Central Government can amend that Schedule by notification. A court may still refer compoundable offences, including compoundable matrimonial offences, to mediation. The outcome is not a judgment or decree under section 27(2) and the court considers it under the law in force.

A court or tribunal can also refer parties to mediation at any stage of a proceeding, even after pre-litigation mediation did not settle the matter (section 7). Parties are not obliged to settle.

Key rules to remember

Mediation agreement (s 4): Written + by or between parties (and those claiming through them) + to submit all or certain disputes, present or future; Can be a clause in a contract or a separate agreement; may be made before or after the dispute arises.
Agreement is 'in writing' (s 4(3)): Signed document, OR exchange of letters/electronic communications, OR pleadings where one party alleges it and the other does not deny; Learn all three limbs.
Pre-litigation mediation (s 5(1)): Voluntary + mutual consent + before filing a civil or commercial suit; agreement not necessary; Specified Value commercial disputes follow section 12A of the Commercial Courts Act, 2015.
Who conducts it (s 5(3)): Unless parties agree otherwise: mediator registered with the Council, or empanelled by a court-annexed mediation centre, or by a Legal Services Authority, or by a recognised mediation service provider; Four categories.
Tribunals (s 5(2)): Applies to tribunals notified by the Central or State Government; Not all tribunals automatically.
Motor accident claims (s 5(6) to (8)): If no settlement under section 149 of the Motor Vehicles Act, 1988, Claims Tribunal shall refer parties to mediation; Settlement goes to the Tribunal for consideration; non-settlement report goes back for adjudication.
Matters not fit (s 6): No mediation for matters in the First Schedule; Compoundable offences may be referred by a court; the outcome is not a decree under s 27(2).
Court referral (s 7): Court or tribunal may refer parties at any stage; may pass interim orders; no obligation to settle; Applies even if section 5 mediation failed.
Commencement (s 14): (a) Existing agreement: date the other party receives notice. (b)(i) Mediator of parties' choice: date mediator consents. (b)(ii) Application to a mediation service provider: date a mediator is appointed; Three triggers.
Challenge to settlement (s 28): Grounds: fraud, corruption, impersonation, matter not fit under s 6. Time: 90 days from receiving copy under s 19(3), plus a further 90 days on sufficient cause; Grounds are exhaustive ('only').

How to solve Pre-Litigation Mediation and Mediation Agreement questions

Case questions ask whether mediation can or must happen, how it starts, or whether a settlement can be challenged. Use this order.

1Identify the issue: agreement validity, pre-litigation mediation, referral by court, subject matter, commencement or challenge.
2Classify the dispute: civil or commercial? A commercial dispute of Specified Value? If yes, bring in section 12A of the Commercial Courts Act, 2015.
3Check subject matter: is it in the First Schedule (section 6)? If so, mediation cannot be conducted, apart from the compoundable offence exception.
4If an agreement is involved, test section 4: writing, parties, disputes covered, and which of the three 'in writing' forms applies.
5Check who can act as mediator under section 5(3) and whether parties agreed otherwise.
6For timing questions, apply section 14 and choose the correct limb.
7State the conclusion in one clear sentence, with the section number you are sure of.

Quickest way: Four-question check

When to use it: Use when you have a short case and little time.

Is it voluntary or referred? Section 5 is voluntary; section 7 is by court or tribunal.
Is the subject matter allowed? Check section 6 and the First Schedule.
Is the agreement in writing in one of three ways? Check section 4(3).
When did mediation start? Notice received, mediator's consent, or mediator appointed (section 14).

Common mistakes in Pre-Litigation Mediation and Mediation Agreement

Writing that pre-litigation mediation is mandatory for every civil suit.
Students mix it with section 12A of the Commercial Courts Act.
Fix: Section 5(1) says 'may voluntarily and with mutual consent'. Only Specified Value commercial disputes follow section 12A.
Saying a mediation agreement is needed before pre-litigation mediation.
Students copy the arbitration idea.
Fix: Section 5(1) says 'whether any mediation agreement exists or not'.
Treating an oral understanding to mediate as a valid mediation agreement.
Students overlook the writing requirement.
Fix: Section 4(1) requires writing. Name the three forms in section 4(3).
Giving the wrong start date of mediation.
Students remember only the notice limb.
Fix: Learn all three: notice received, mediator's consent, mediator's appointment.
Adding extra grounds such as 'unfair terms' for challenging a mediated settlement agreement.
Students assume general contract grounds apply.
Fix: Section 28(2) allows only fraud, corruption, impersonation and matters not fit under section 6.
Saying a court cannot refer parties to mediation once section 5 mediation has failed.
Students think the options are exclusive.
Fix: Section 7(1) lets a court or tribunal refer parties at any stage, 'notwithstanding' non-settlement under section 5(1).

Worked examples

Example 1

Sunrise Textiles Pvt Ltd and Kaveri Dyes Ltd have a supply contract with no mediation clause. A dispute arises. Sunrise wants to try mediation before suing. Kaveri agrees by email. Advise whether they can go for pre-litigation mediation and who may conduct it.

Show the solution

Provision: section 5(1) allows parties, before filing a civil or commercial suit, to voluntarily and with mutual consent take steps to settle by pre-litigation mediation, whether or not a mediation agreement exists.
Facts: there is no clause, but both consent, and Kaveri's email shows mutual consent. An exchange of electronic communications can also record a mediation agreement in writing under section 4(3)(b).
Check Specified Value: if the dispute is a commercial dispute of Specified Value, the mediation must follow section 12A of the Commercial Courts Act, 2015 and its rules.
Mediator: unless the parties agree otherwise, the mediator must be registered with the Council, or empanelled by a court-annexed mediation centre, a Legal Services Authority or a recognised mediation service provider (section 5(3)).

Answer: Yes. The absence of a clause does not matter because pre-litigation mediation is voluntary and by mutual consent. The parties may use a mediator from the section 5(3) categories, subject to section 12A of the Commercial Courts Act, 2015 if the dispute is of Specified Value.

Example 2

Arjun and Meera agree in writing to mediate a dispute. A mediator, chosen by them, consents to act on 5 March. Arjun had sent notice to Meera on 1 March, which she received on 2 March, but the agreement was made only after that notice. Meera later learns that the matter was in the First Schedule list. Decide when mediation commenced and whether she can challenge the settlement.

Show the solution

Commencement: section 14(b)(i) applies where parties agree to appoint a mediator of their choice. Mediation commenced on the date the mediator consented, 5 March.
The notice limb in section 14(a) needs an existing agreement when notice is received. Here the agreement came later, so that limb does not apply.
Challenge: section 28(2)(iv) permits a challenge where the mediation was conducted in a matter not fit for mediation under section 6.
Time: the application must be made within ninety days from receiving the copy of the mediated settlement agreement under section 19(3). A further ninety days is possible if sufficient cause is shown.

Answer: Mediation commenced on 5 March. Meera can challenge the settlement under section 28(2)(iv) before the competent court or tribunal, within ninety days of receiving her copy, extendable by up to a further ninety days on sufficient cause.

Exam tips

Quote the key words of section 5(1): 'voluntarily and with mutual consent' and 'whether any mediation agreement exists or not'.
Write the section number only for provisions you are sure of: 3, 4, 5, 6, 7, 14, 19 and 28 are given in the official text.
In case questions, follow the order: provision, facts, conclusion.
Learn the three commencement limbs of section 14 and the exhaustive four grounds of section 28(2) as lists.
Mention the Specified Value commercial dispute link to section 12A whenever the dispute is commercial.

Practice questions from Mediation: An Introduction and its Process along with Rules

Pre-Litigation Mediation and Mediation Agreement in other exams

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

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Pre-Litigation Mediation and Mediation Agreement: frequently asked questions

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

Under section 5(1) it is voluntary and needs mutual consent. For commercial disputes of Specified Value, mediation is undertaken under section 12A of the Commercial Courts Act, 2015 and its rules.

Does a mediation agreement have to be in writing?

Yes. Section 4(1) requires writing. It can be a signed document, an exchange of letters or electronic communications, or pleadings where one party alleges the agreement and the other does not deny it.

Which disputes cannot be mediated?

Matters in the indicative list in the First Schedule, under section 6. The Central Government can amend that Schedule by notification. Courts may still refer compoundable offences to mediation.

Can a court refer parties to mediation?

Yes. Under section 7 a court or tribunal can refer parties to mediation at any stage of a proceeding. It may pass suitable interim orders, and the parties need not settle.

On what grounds can a mediated settlement agreement be challenged?

Only fraud, corruption, impersonation, or mediation of a matter not fit under section 6 (section 28(2)). The application must generally be made within ninety days of receiving the copy.