The concept of mediation finds place in different acts, however, it received legislative recognition in India for the first time in the Industrial Disputes Act, 1947.
Section 4 of Industrial Disputes Act, 1947, stipulates that conciliators appointed are assigned with the duty to mediate and promote settlement of industrial disputes with detailed prescribed procedures for conciliation proceedings.
Section 89 and Order X Rule 1A Code of Civil Procedure 1908 was inserted through an Amendment Act of 1999. This provision empowers the court to direct the parties to opt for any of the five modes of the Alternate Dispute Resolution (“ADR”) and refer the case for arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation.
Civil Procedure Mediation Rules, 2003 contains provision for mandatory mediation under Rule 5(f)(iii). As per this Rule, when one party applies to the court for mediation or conciliation, the court after hearing all the parties, can refer the matter for mediation without the consent of all the parties. However, this reference can be made only when the court is satisfied that there exists elements of settlement and there is a relationship between the parties which has to be preserved.
Section 12 of Commercial Courts Act, 2015 requires parties to exhaust the remedy of pre-institution mediation before institution of a commercial suit. The said pre-institution mediation has to be conducted by the authority constituted under the Legal Services Authorities Act, 1987 and has to be in conformity with the Commercial Courts (Pre-intsitution Mediation and Settlement) Rules, 2018. In case the parties successfully arrive at a settlement, it would be enforceable as an award under the Arbitration and Conciliation Act, 1996.
Section 442 of the Companies Act, 2013 read with the Companies (Mediation and Conciliation) Rules, 2016 provides that the Central Government shall maintain a panel of experts consisting of such number of experts, having such qualifications, as may be prescribed for mediation between the parties during the pendency of any proceedings before the Central Government or the Tribunal or Appellate Tribunal under this Act.
Sections 37-38 and Chapter V of the Consumer Protection Act, 2019 read with Consumer Protection (Mediation) Rules, 2020 provides for disputes covered under this Act to be first referred to mediation. It has been clearly provided under Section 37 (1) of the Act that at first hearing of a complaint after its admission or at any later date, if it appears to the District Commission that there exist elements of a settlement which may be acceptable to the parties, it may direct the parties to give in writing within 5 days, their consent to refer the matter to mediation and the provisions of Chapter V of this Act shall apply.