Research Proposal

1. Proposed Title
Pre-Litigation Mediation as a Mandate to Reduce Judicial Backlog in India: A Critical Study

2. Abstract
India’s justice system continues to struggle under the weight of an expanding docket, with
over four crore pending cases across courts. Delays have become structural, not exceptional,
prompting renewed interest in alternative mechanisms that divert disputes away from formal
adjudication. Pre-litigation mediation has emerged as a central policy response to this crisis,
especially after the enactment of the Mediation Act 2023. The Act positions mediation not merely as
an optional alternative but, in specific categories of disputes, a mandatory first step before filing a
civil suit. This shift raises practical, constitutional, and institutional questions regarding both its
necessity and its limits.
This dissertation critically examines whether mandatory pre-litigation mediation can
meaningfully reduce the burden on Indian courts. It evaluates the legislative framework, practical
functioning of mediation centres, and the broader constitutional context governing access to justice.
The study also considers how “mandatory” processes intersect with the voluntary nature of
mediation, the competence of mediators, the quality of settlements, and the risk of pressuring
parties into agreement.
The research draws from statutory analysis, case law, policy literature, and comparative
experiences from countries where pre-action mediation has been implemented. It identifies
structural challenges such as uneven infrastructure, lack of trained mediators, limited public
awareness, and concerns about neutrality. At the same time, it acknowledges situations where early-
stage mediation has successfully diverted cases, especially in commercial and family disputes.
The study ultimately argues that mandatory pre-litigation mediation can reduce case inflow
but only when supported by strong institutional safeguards. Without these, mandating mediation
risks becoming a procedural formality that delays rather than expedites justice. The dissertation
proposes a calibrated approach where mandatory mediation is used selectively, supported by
capacity-building, monitoring standards, and robust legal protections for party autonomy.

3. Methodology
This dissertation adopts a doctrinal and policy-oriented methodology, grounded in an
examination of statutory provisions, judicial decisions, and institutional frameworks governing
mediation in India. The primary focus is the Mediation Act 2023, its mandated pre-litigation
mechanism, and its interaction with existing procedural laws such as the Code of Civil Procedure,
the Commercial Courts Act, and sector-specific regulatory frameworks.
The first stage involves doctrinal analysis. It examines relevant Supreme Court and High
Court decisions on mediation, including those addressing court-annexed mediation, the limits of
compulsion, and the constitutional implications of mandatory settlement processes. This helps
clarify how courts view party autonomy, procedural fairness, and the boundaries of pre-litigation
requirements.
The second stage consists of a detailed policy and institutional study. Reports by the Law
Commission, NITI Aayog, the Mediation Bill Committee, and court-annexed mediation centres are
analysed to understand the practical functioning of mediation infrastructure. This includes
evaluating mediator training standards, settlement rates, administrative capacities, and the
challenges faced by mediation centres at district and taluka levels.
The third stage uses comparative analysis. Jurisdictions such as Italy, Singapore, and the UK
provide useful examples of mandatory pre-action mediation and early dispute resolution
frameworks. These models help identify safeguards—such as exemptions for urgent matters,
screening mechanisms, and cost incentives—that could guide Indian regulatory design.
The methodology remains qualitative rather than empirical; it does not conduct fieldwork or
interviews. Instead, it synthesises doctrinal, institutional, and comparative insights to assess whether
mandated mediation can realistically achieve the objective of reducing judicial backlog. Throughout
the analysis, the study evaluates the reforms against constitutional benchmarks of access to justice
and procedural fairness.

4. Literature Review
Scholarly writing on dispute resolution in India reflects a consistent concern: the judiciary
cannot manage the volume of cases funnelled into the system without robust alternatives. Pre-
litigation mediation has thus attracted significant academic and institutional interest. The literature
spans four broad themes: judicial backlog and systemic delay; the theory and practice of mediation;
debates on mandatory mediation; and India-specific analyses of institutional capacity.
The first body of literature focuses on the structural crisis of pendency. Scholars point out
that delays arise from limited judicial capacity, procedural inefficiencies, and a high rate of case
inflow. Research from the Law Commission and NITI Aayog argues that meaningful reform
requires diverting a portion of disputes away from courts. Mediation, when functioning effectively,
is viewed as a less adversarial, faster, and cost-efficient alternative.
The second theme concerns the nature of mediation itself. Academic work emphasises
mediation as a voluntary, interest-based process grounded in party autonomy. Authors highlight the
strengths of mediation: flexibility, confidentiality, and the potential for creative settlements. Yet they
also identify limitations. Without skilled mediators, safeguards against coercion, and balanced
power dynamics, settlements may reflect pressure rather than genuine agreement. This tension
becomes central when mediation is mandated by law.
A third stream of literature examines mandatory mediation. International scholarship shows
divided views. Some argue that compulsion undermines the consensual character of mediation;
others contend that mandatory pre-action mediation encourages early settlement without violating
autonomy, as long as parties retain the right to decline settlement. Comparative studies of Italy,
Singapore, and the UK show that mandatory mediation can reduce case inflow, but only when
supported by strong institutional structures, adequate funding, and consistent mediator
accreditation.
Indian scholarship engages critically with this debate. Writers express concern about making
mediation compulsory before filing suit, especially when public awareness is low and mediation
centres differ widely in capacity. Commentators warn that mandatory mediation may become a
bureaucratic hurdle, causing additional delay and increasing costs, particularly in rural and lower-
income contexts. Others highlight that mandatory mechanisms work well for commercial, family,
and neighbourhood disputes, where early dialogue can resolve matters efficiently.
The fourth theme is India-specific institutional analysis. Studies assessing court-annexed
mediation centres show moderate success rates but uneven infrastructure. Many centres suffer from
limited staff, lack of trained mediators, and inconsistent monitoring mechanisms. Research
highlights variations in settlement rates across states, reflecting differences in training,
administrative support, and local legal culture. Scholars also stress that the quality of mediation is
linked to mediator competence; without professional accreditation, the process may not meet
fairness standards.
The literature also examines the Mediation Act 2023. Authors appreciate its attempt to give
mediation a formal statutory basis and streamline fragmented frameworks. However, critiques focus
on the ambiguity surrounding exemptions, enforcement of mediated settlement agreements, and
whether mandatory pre-litigation mediation aligns with constitutional guarantees of access to justice
under Articles 14 and 21. Some scholars suggest that mandatory mediation must be implemented
cautiously, with mechanisms to screen unsuitable cases and safeguard against coercion.
Across these streams, a shared insight emerges: while pre-litigation mediation has potential
to reduce case inflows, it is not a silver bullet. Its effectiveness depends on infrastructure, public
acceptance, fairness safeguards, and careful selection of disputes. Mandatory mediation may help
courts, but only if it does not compromise autonomy or create procedural obstacles that hinder
rather than support access to justice.
This dissertation builds on these concerns by evaluating whether the mandatory framework
in India, particularly post-2023, is capable of delivering meaningful reduction in court backlog
while maintaining constitutional and procedural integrity.

5. Annotated Bibliography
1. Law Commission of India, 129th Report (1988) and 222nd Report (2009) :
These reports highlight chronic delay in the Indian judicial system and recommend institutionalising
mediation as a way to divert civil disputes. They provide historical and policy context, showing
why alternative dispute resolution emerged as a strategic necessity rather than a mere option.
2. NITI Aayog, Report on Strengthening Mediation (2020) :
The report proposes a national mediation law and emphasises the need for mandatory pre-litigation
mediation in commercial disputes. It outlines infrastructure requirements, mediator training
standards, and institutional design principles that directly inform the dissertation’s analysis of
capacity challenges.
3. Sriram Panchu, Mediation: Practice and Law :
Panchu offers a detailed account of mediation theory and practice in India. His work helps explain
the voluntary foundation of mediation and provides insight into practical issues that arise when
mediation is used as a first step before litigation. The text is useful for evaluating whether
compulsion undermines party autonomy.
4. Genn, Hazel, What is Civil Justice For?
Genn critiques the trend of diverting disputes away from courts and warns against assuming
mediation is inherently beneficial. Her argument that mandatory pre-action processes may hinder
access to justice provides an important counterpoint to policy-driven enthusiasm for mandatory
mediation.
5. Carrie Menkel-Meadow, The Many Ways of Mediation
Menkel-Meadow’s work situates mediation within the broader field of dispute resolution. She
argues that mediation’s success depends on context-sensitive application rather than one-size-fits-all
mandates. Her analysis supports this dissertation’s caution against indiscriminate use of mandatory
mediation.
6. Singapore Mediation Act and Mediation Framework
Singapore’s structured approach—combining mandatory guidance, high-quality training, and strong
institutional support—offers a comparative model. It demonstrates how mandatory mediation can
succeed when implemented with clear safeguards, and where it risks failure without adequate
infrastructure.
7. Italian Legislative Decree on Mandatory Mediation (2010)
Italy’s experience shows both the promise and pitfalls of mandatory pre-litigation mediation.
Settlement rates initially increased, but logistical challenges and uneven mediator competence
created problems. This comparative material helps evaluate India’s readiness for similar mandates.
8. Mediation Act 2023 (India)
The Act is central to the dissertation’s analysis. It formalises pre-litigation mediation and raises
significant questions about enforceability, exemptions, mediator accreditation, confidentiality, and
its interaction with access-to-justice principles. It forms the statutory backbone of the study.