HIGHLIGHTS

The Role and Potential of Pre-Litigation Mediation in India

Introduction to Mediation and Its Benefits
A settlement is reached in 70–80% of instances using mediation, an alternative conflict resolution process that tries to arrange a meeting between the parties. Impartial professionals known as mediators assist couples in coming to a mutually agreeable solution. Couples have more flexibility and can escape the turbulence of the situation when mediation is done in a private location. In contrast to conventional litigation, mediation frequently occurs in conjunction with litigation. While binding in a manner akin to a typical court process, arbitration is not legally binding. Chief Justice Sharad Arvind Bobde of India supported pre-litigation mediation as a way to save costs and time for the parties involved as well as the courts. He also asked for a statute to bind agreements made through mediation.

Historical Context and Growth of Mediation
Mediation has been around since antiquity, and in the UK, its trade brokerage industry grew by 20% between 2016 and 2018. It has benefits over litigation, including unbiased, independent, non-judgmental, and non-consultative. Pre-litigation mediation is an aggressive tactic to resolve conflicts ahead of time, avoiding court backlogs, before they reach the formal legal system. Pre-institution mediation and settlement procedures are required for all commercial disputes under the Singapore Convention on Mediation. Conciliation, pre-litigation, online, and express mediation are among the several forms of mediation examined. Pre-litigation mediation, which forces parties to come to a settlement before filing a lawsuit, can potentially revolutionize the legal landscape in India. Additionally being investigated is online mediation, which uses networks and computer programs. In the Indian legal system, using mediation as an alternative to litigation might be a viable next step.

Advantages of Pre-Litigation Mediation in India
In India, pre-litigation mediation is a legal substitute for traditional litigation that entails the peaceful resolution of disputes between the parties before the court's establishment or notice. Consensual mediation is one of its many advantages since it prevents confrontational dynamics, promotes cooperation, and allows parties to actively create a solution that meets their unique requirements. Pre-litigation mediation is also more effective, providing a quicker settlement period and lower expenses. It may also be divided among parties, saving substantial money and making it more economical. Pre-litigation mediation also protects confidentiality, so parties can discuss possible resolutions without worrying that they would be used against them in a later court case. This confidentiality promotes candid and productive dialogues, raising the likelihood of reaching a mutually accepted solution. Nonetheless, there are issues in India, such as misinterpretations of the term "urgent" and inadequate mediation training. The government should provide more mediation facilities and ensure that evidence is utilized in private to guarantee the effectiveness of pre-litigation mediation in solving these problems.

Alleviating Court Backlogs and Ensuring Equitable Access
In nations like India, where the legal system suffers from severe backlogs and delays, pre-litigation mediation can relieve some of the pressure on the court system. Assuring equitable access to the legal system and fostering efficiency, helps free up resources for complicated or urgent matters. Pre-litigation mediation, however, might not be appropriate for every situation, and parties must be prepared to make concessions and act in good faith. Pre-litigation conciliation can only be successful if both parties are open to engaging in meaningful dialogue and looking for solutions that work for both of them. Pre-litigation mediation promotes cooperation, is adaptable, and is reasonably priced. The length of the negotiation depends on the parties' intention to negotiate, the effectiveness of the communication channel, and the complexity of the topic. It is often performed in a non-adversarial and confidential way. It is also a great way to settle family law and business disputes since it may keep professional ties intact, defuse tensions, and cut expenses.

Cost and Time Efficiency Compared to Traditional Litigation
Conventional litigation has drawn-out phases, and long court dockets, and may be expensive. Pre-litigation mediation provides a quicker and more economical substitute for traditional litigation. It enables participants to talk about problems and rapidly come to an agreement, freeing them up to concentrate on the most crucial subjects. On the other hand, customary litigation may incur high costs, such as legal fees, court costs, and expert witness fees. Pre-litigation mediation is growing in popularity since it saves money and takes less time. To prevent adversarial arrangements, the Supreme Court has highlighted the benefits of pre-litigation mediation in family disputes and advised parties to get in touch with mediation centres as soon as feasible. Pre-litigation mediation is not yet regulated in India, which has an impact on enforcement and secrecy. It is unclear if courts would uphold confidentiality in fraud cases or whether they would adopt a consistent position on settlements reached through mediation.

Need for Legal Framework and Institutional Support
In India, mediation is an important alternative conflict resolution process that fosters cooperative problem-solving and relationship preservation. It takes an impartial third person to manage feelings, promote dialogue, and lead negotiations so that parties may investigate their interests and come to a mutually agreeable resolution. The Indian Contract Act uses the concepts of coercion, voluntary consent, and fraud to support the legality of private mediation agreements. Parties must go to court to make the settlement binding because mediation agreements do not include an enforcement mechanism. An enforcement and confidentiality framework is necessary to promote mediation as an alternative conflict settlement procedure. In addition to guaranteeing the maintenance of current relationships and preventing hostility, mediation enables parties to participate in the settlement process actively. Additionally, it aids in removing institutional obstacles to justice, especially for disadvantaged groups. Pre-litigation mediation can spark a larger cultural change towards cooperative conflict resolution as it gains greater acceptance, which would result in a society that is more robust and peaceful.