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

Meera Textiles Pvt Ltd and its supplier Kothari Yarns, both in Surat, have a contract with no mediation clause. Before filing any civil suit over a payment dispute, Meera proposes to try mediation first, and Kothari agrees. Under the Mediation Act, 2023, is pre-litigation mediation available to them?

Yes. The Act allows parties, voluntarily and with mutual consent, to try pre-litigation mediation before filing a civil or commercial suit, whether or not any mediation agreement exists. A mediation clause in the contract is therefore not a precondition for such mediation.

  1. ANo, because pre-litigation mediation can be used only where a mediation agreement exists in the contract
  2. BYes, because parties may voluntarily and with mutual consent attempt pre-litigation mediation whether or not a mediation agreement existsCorrect
  3. CNo, because it can be undertaken only after a suit has been filed and referred by the court
  4. DYes, but only if the Mediation Council of India first approves the proceeding

Explanation

Section 5(1) says that whether any mediation agreement exists or not, parties may voluntarily and with mutual consent take steps to settle disputes by pre-litigation mediation before filing a suit. The option requiring a prior agreement is wrong because the Act expressly dispenses with it. Council approval is not required.

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