INTRODUCTION

Mediation is one of the alternate dispute resolution mechanisms which has been growing rapidly in terms of preference in the past few years. One of the best ways to resolve conflicts at both, International and Domestic levels is through mediation. It is a process where both parties in dispute, meet and negotiate with the assistance of an impartial third party to facilitate the mediation. In fact, it focuses more on dispute resolution through negotiation without the complications faced through the legal provisions. The Indian government has not yet codified the law, but the Mediation Bill has not been passed yet. Although there have been a few laws in India that provide for pre-litigation mediation, the Bill has introduced it to a different set of cases. This paper mainly focuses on the aspect of pre-litigation mediation in India. It firstly explains the emergence and importance of the adaption of mediation in India. The paper further proceeds to critique clause 6 of the Mediation Bill, 20211 which deals with pre-litigation mediation, it continues to critique the provisions adopted in the bill through a comparative analysis between Italy and India. The paper concludes by giving amicable solutions for the amendment of the clause that provides for pre-litigation mediation in India.

BACKGROUND AND IMPORTANCE OF MEDIATION IN INDIA

In a country like India which has one of the highest numbers of pending cases in the High Court as well as the Supreme Court, the government needed to introduce a law governing the mediation process through codification. Many parts of the country have been familiar with the concept of mediation, especially in villages where the head of the village helps both parties impartially to resolve their dispute. However, after British colonialism, mediation was recognised as a legal and formal alternate dispute mechanism. The introduction of the Lok Adalat Courts and their statutory recognition through the Legal Services Authority Act has brought the country a step closer to the adaptation of mediation as a conflict resolution mechanism. Therefore, the process of mediation is not a new form of dispute resolution for the citizens of the country, at the same time, it is also quite unknown to a lot of people. In pursuance of the same, the Mediation Bill was passed in 2021 which requires extensive reorganization and amendment to most of its clauses for it to become operational. It benefits the companies as well as the households as it helps in restoring relationships, is cost-effective and is much faster than litigation. It also protects the reputation of the companies as none of the parties involved in the mediation process wins in a mediation unlike litigation, where either of the parties wins the suit. It does not allow for mediation to come to the public light due to its essence of confidentiality. However, the central government, in order to give formal statutory recognition to the process of mediation has drafted a mediation bill to make it legally enforceable. The Parliamentary Standing Committee on Law and Justice has recommended major alterations to the current recommended mediation bill in order to make it an Act. 
Mekhla Chakraborty, „Development of Mediation In India? (Via Mediation Centre, 2022) 
https://viamediationcentre.org/readnews/ODc=/DEVELOPMENT-OF-MEDIATION-IN-INDIA-A-BRIEF-HISTORY#:~:text=The%20use%20of%20mediation%2C%20as,Mahajans%20were%20appointed%20as%20mediators accessed 4 November 2022

CRITIQUE ON PRE-LITIGATION MEDIATION IN INDIA

The Mediation Bill mandates pre-litigation mediation which is explicitly mentioned in clause 6 of the Bill. Most of the clauses of the bill mainly revolve around the concept of prelitigation mediation and its mandates. Clause 6 of the Mediation Bill mandates the parties to the suit to attend two mandatory mediation sessions before filing for a suit dealing with civil or commercial matters without having a contractual agreement for mediation. Firstly, Mediation is a voluntary process for conflict resolution, unlike litigation or arbitration where both parties are bound to attend the proceedings regardless of their interests6 . The mandate for pre-litigation mediation takes away the essence of mediation by making it mandatory for the parties to attend the sessions. One might make the argument of the clause being flexible with the mediation process as it only makes the first two mediation sessions mandatory for the parties failing which the parties would still have the option to proceed with litigation. Secondly, Rajya Sabha in its attempt to promote mediation by reducing the burden of the increased number of cases in the courts failed to take into consideration that both the parties to the dispute might not want to proceed with mediation as a dispute resolution mechanism7 . With this continued intention of the parties, the compulsory mediation session would not benefit either of the parties as the element of voluntariness is not present. This would certainly delay the process of dispute resolution and waste the time and effort of both parties. It would further increase the pendency of the case as the parties not interested in dispute resolution or mediation would continue with litigation, increasing the burden on the judiciary8 . Thirdly, the mandate unnecessarily complicates the proceedings by adding another branch of justice. This would create a problem for both parties not intending to mediate to seek justice. Although the Indian litigation process is lengthy and continues for years, the issue cannot be tackled by making mediation mandatory. It would defeat the purpose of mediation and is not the right way to promote the process. Instead, the parties need to be given the option to participate in the mediation process by making it voluntary and providing an option to mediate. Although it cannot be enforced effectively, the country would still take a step towards promoting mediation. Fourthly, the bill does not provide an effective remedy to the breach of the pre-litigation mediation clause. There is no clause in the mediation bill that effectively enforces prelitigation mediation. If mediation is made mandatory, then there is a possibility for either of the parties to not show up to the mediation sessions if they are not interested. Although section 20(2)9 provides a remedy for non-appearance for the mandatory mediation sessions, it only imposes a minimal fine on the party that does not appear for the sessions. No clause enforces or holds them liable at a higher degree for not being able to attend the sessions. This creates an undue advantage for the parties as they can pay the required fine for not attending the session and continue with their litigation process As the bill is not enforced at a higher degree, it should be considered to make the prelitigation mediation voluntary for the parties in dispute. Otherwise, just like the mediation laws in Singapore, the courts should suggest mediation as it deems appropriate during the course of the suit, while the proceedings are going on10 . Fifthly, the Commercial Courts Act, 201511, was introduced to adjudicate commercial conflicts of one crore or above in order to ensure the speedy disposal of cases12. Section 12A13 of the Act specifically mandates pre-litigation mediation for commercial disputes before filing a suit for disputes that do not require urgent interim relief. The disputes that require urgent interim relief can be overlooked and the parties in dispute can proceed with litigation. To avoid the process of mediation, people apply for an urgent interim relief as the act does not specify what constitutes „urgent?14. Through this, they try to escape the mediation process as it is the judge?s discretion to decide if the matter is interim or not. Many cases have questioned the mandatory pre-institution mediation, but the courts have held that it does not infringe upon the fundamental rights of the parties as they get the right to file a suit if the mediation fails. But the enforceability of the section has been difficult in many aspects like the lack of proper drafting of laws, lack of infrastructure and lack of enforceability15 . Therefore, the difficulties faced by the Commercial Courts Act, 201516, should have been studied before providing for pre-litigation mediation in the Mediation Bill. Sixthly, the pre-litigation mediation clause directs every civil or commercial dispute to mediation, this would create a burden on the courts to appoint a mediator for every dispute that arises. Now, all the cases that were to come to the court would be diverted to mediation, but the country does not have enough mediators to facilitate such mediation. If the bill is to be passed and becomes an act now, there is not enough infrastructure to accommodate such mediation. Before the bill was passed, mediation was not a widely preferred form of dispute resolution mechanism unlike litigation, hence, the number of mediators and the rooms for mediation, that is, the infrastructure to support mediation is very less. The lack of infrastructure for the implementation of the law creates a negative impact on its enforcement. Therefore, if the clause makes mediation voluntary, then the problem of infrastructure would not arise. Seventhly, one of the most important critiques of the clause of pre-litigation mediation is not being able to have precedents. The judicial system of India, in most of the circumstances and cases, follows a common law approach where the judgements that were held in a case would be used for the next case that has similar facts unless that particular case requires the law to be amended according to the progressive society at par with the laws followed by the other countries. But if most of the disputes are referred to mediation and are settled through mediation then the evolution of the law through new cases would not be possible and the country would be governed by the same laws without any evolution or progression. 
Reasons to Mediate? (US Equal Employment Opportunity Commission, 2003) https://www.eeoc.gov/10- reasons-mediate accessed 5 November 2022 Aga Ahmed, Saher Hussain, „India?s Need of the Hour: Mandatory Pre-Litigation Mediation? (USLLS ADR BLOG, 2021) https://usllsadrblog.com/indias-need-of-the-hour-mandatory-pre-litigation-mediation accessed 4 November 2022 
Parliamentary Panel Submits Reports on Mediation Bill? (Hindustan Times, 2022) https://www.hindustantimes.com/india-news/parliamentary-panel-submits-report-on-mediation-bill-2021- 101657774975373.html accessed 3 November 2022 
Mandatory Pre-Litigation Mediation Needs a Lot of Ground Work Before Rollout? (The Hindu Business Line, 9 January 2022) https://www.thehindubusinessline.com/business-laws/mandatory-pre-litigationmediation-needs-lot-of-ground-work-before-rollout/article38204536.ece accessed 2 November 2022 
Abhijnan Jha, Urvashi Misra, „Mandarory Pre-Institution – Effective Remedy to Declog Courts in India? (SCC Online Blog, 2022) https://www.scconline.com/blog/post/2022/10/22/mandatory-pre-institutionmediation-effective-remedy-to-declog-courts-in-india accessed 8 November 2022 
Krishnanunni U and Kessia E. Kuriakose, „Mediation in India – Challenges, Recommendations and Relevance in Post COVID Scenario? (THE CBCL BLOG, 2021) https://cbcl.nliu.ac.in/contemporaryissues/mediation-in-india-challenges-recommendations-and-relevance-in-post-covid-scenario accessed 7 November 2022 
 

COMPARATIVE ANALYSIS BETWEEN INDIA AND ITALY

Italy is one of the countries that India borrowed the mandatory pre-litigation mediation approach from. However, both countries have an “opt-out mechanism” where the parties have the option to opt out of mediation if they do not want to continue with the sessions, but it is mandated for the Indians according to the Mediation bill to attend the first two sessions17 . The Mandatory Mediation Model 2011 of Italy only mandates pre-litigation mediation for certain kinds of cases that majorly deal with rights of alienation which constitutes 8.5% of the number of cases as a whole in Italy in 202018 . In contrast, the proposed Mediation Bill in India is expected to direct all civil and commercial cases to mediation. It would constitute a huge number of cases as civil and commercial disputes add up to a high percentage of cases in India. The Mediation Bill should focus on directing specific types of cases to mandatory pre-litigation mediation rather than directing all the cases to mediation. This would not only make the process smoother but also easier for the parties in dispute and also the judiciary. Once the Mandatory Mediation Model 2011, was introduced in Italy, it faced a massive mediation explosion due to the high number of cases being referred to mediation19. If the bill is introduced without amendment, India would not be able to provide the required infrastructure to handle the explosion of mediation as the number of cases in India is usually high. The number of mediators and mediation centres in the country is very low as compared to Italy and additionally, the number of cases in India is higher. Therefore, it is required for them to increase the number of mediators and centres for dispute resolution for them to make the bill operative into an Act. 
Aaryan Dhasmana, „Mandating Mediation: India?s Learnings from the Italian Experience? (2022) https://rsrr.in/2022/10/21/mediation-india-italy-learnings accessed 7 November 2022

WAY FORWARD AND CONCLUSION

Mediation is one of the most important and emerging aspects of dispute resolution throughout the world. It seems to be gaining popularity because of its cost-effectiveness, time efficiency, and its ability to protect the reputation of the companies and people, unlike litigation. The government needs to take initiatives to increase the use of the dispute resolution mechanism, but the introduction of pre-litigation mediation is not an effective way to increase its popularity20 . Amendments can be made to the bill for it to be more effective and become operational. Certain considerations can be made for the Bill to become more enforceable, voluntary, and efficient: 
1) It is recommended to amend the Mediation bill by referring pre-litigation mediation to selected cases like matrimonial disputes and small commercial disputes rather than diverting all the cases related to civil and commercial disputes towards mediation. Larger cases that require the attention of the higher courts should not be referred to mediation. Even if the smaller disputes are referred to mediation it should be made voluntary, that is, it should be at the discretion of the parties to mediate the dispute or not. Due to this, the infrastructural issue of not having enough mediators and mediation centres would be resolved and mediation would continue to remain a voluntary process rather than an opt-out mechanism. 
2) Furthermore, from the provision of section 12A of the Commercial Courts Act, 201521, it can be said that pre-litigation mediation in commercial disputes has not been going well due to the lack of infrastructure. However, the bill needs to take into consideration that, if, the cases related to commercial disputes are not being handled due to infrastructural problems, then handling the mediation process for both civil and commercial disputes would create a mediation explosion. 
3) The mediation explosion can be controlled in India by introducing pre-litigation mediation in a phased manner rather than introducing it immediately, by providing emphasis on building the capacity of the mediators and the mediation centres slowly22. 
4) It was also recommended by the opposition to introduce a state council like the Mediation Council of India to handle the responsibilities arising in the states related to mediation for it the Bill after becoming an Act to be more effective and efficient. 
5) The mediation laws need to be codified in order to allow the judiciary to be able to use its powers flexibly 
A.M. Jigeesh, „House Panel Recommends Against Compulsory Mediation, Role of Judiciary? (The Hindu, 2022) https: //www.thehindu.com/news/national/mediation-bill-house-panel-recommends-against-compulsorymediation-role-for-judiciary/article65628277.ece accessed 6 November 2022