Commercial Mediation: With Special Reference to India

Abstract

Commercial mediation in India was brought to life in 1996 when the Indian Parliament modified the Civil Procedure Code (CPC) and adopted section 89 that empowered the courts to settle disputes through mediation along with other means. This legislation regulates mediation in India's court system. The Arbitration and Conciliation Act (ACA) was also introduced in 1996. The ACA's rules regulate private mediation in India. The primary manner of mediation is evaluative. Contracting parties seem to prefer having an authority figure as the mediator, and being guided quite confidently in the mediation rather than being completely hands-off. This is a very common cultural characteristic in Asia. The sides expect the mediator to lend them his or her view of their case's vulnerability and actively participate in finding answers; indeed, they would be frustrated if they felt the mediator was not fully involved in solving the dispute with them. The emphasis is on privileges, as well as freedoms. Most mediators tend to be supportive. It is rare to mediate transformative. Recently, Parliament of India approved the High Court (Amendment) Act 2018 (Law),providing “Commercial Courts, Commercial Division and Commercial Appellate Division” on August 10, 2018. In a potentially significant change, Section 12A of the Act stipulates compulsory per-institution mediation, i.e. the plaintiff is required to explore the mediation procedure prior to filing a litigation in compliance with the 2018 Commercial Court “(Pre-Institution Mediation and Settlement) Rules ” unless the litigation calls for any immediate temporary relief under the parent Commercial Courts Act, 2015.