Mediation Act 2023 Does Not Confer Power On Courts To Mandate Mediation Without Mutual Consent Of Parties

“The question before me is to decide, whether the parties who

are closely related should be referred to mediation, when one of them

is not willing to go for mediation.”

1. The present Suit is filed for specific performance of a family

arrangement of 1994. Plaintiff No. 1 is the sister of Defendant Nos.

1 and 5. In the Suit, an Interim Application has been preferred by

Defendant No. 1 under the provisions of Order VII, Rule 11 of the Code

of Civil Procedure, 1908 (for short “CPC”). Plaintiffs have filed their

reply to the said Interim Application. Defendant No. 1 further filed his

Affidavit in re-joinder. Hence, the pleadings in the Interim Application are complete.

2. On 27 March, 2026, when the Interim Application was listed for

hearing, after the Counsel for Defendant No. 1 initially narrated the

facts, this Court suggested the parties to consider the option of

mediation as the parties are closely related to each other. On the said

suggestion, Dr. Tulzapurkar, learned Senior Counsel for Defendant

No. 1 submitted that, he will take instructions from his client on the

suggestion which has fallen from the Court. Hence, the matter was

adjourned to 15 April, 2026.

3. When the matter was called out on 15 April, 2026,

Mr. Dwarkadas, Ld. Sr. Counsel appeared for the Plaintiffs and made

his submissions on the issue of dispute between the parties to be

referred to mediation as Dr. Tulzapurkar was not available.

Mr. Dwarkadas submitted that he would talk to Dr. Tulzapurkar on the

issue about the parties opting for mediation. Hence, the matter was

adjourned to 16 April, 2026.

4. On the next day, when the matter was called out, after hearing

the parties following Order was passed :-

“1. Heard Mr. Dwarkadas, learned Senior Counsel for some time.

By consent, stand over to 28.04.2026. The matter to come up under

the caption “For Directions”.

2. Post lunch, Mr. Purohit, learned Senior Counsel for

Defendant No. 1 orally submitted that a news item is published

online, which supports the concern raised by him in the morning

session. He tendered a photocopy of the news item. He submitted

that it is the Plaintiff who only can publish this news. On

instructions, he submits that he would like to go on with the matter

on merits. He further submits that if the Plaintiffs genuinely want to

give an offer for settlement, they can do so and his client will

immediately respond to the same.

3. Mr. Janak Dwarkadas, learned Senior Counsel for the

Plaintiffs that the news item which has been tendered by Defendant

No. 1 is not published by his client and they have no role in the

publishing the same. If Defendant No. 1 is not interested to settle

the dispute amicably, he will proceed with his arguments on the next

date of hearing.

4. Let this matter to come up on board on 28.04.2026 at 1.00

p. m., in the meanwhile, parties are free, without prejudice to their

rights and contentions to exchange their settlement proposal.”

[Emphasis Supplied]

5. Thus, the parties were at liberty without prejudice, to exchange

their settlement proposals. Dr. Tulzapurkar, Ld. Sr. Counsel for

Defendant No.1, submitted that on the previous hearing i. e. 16 April,

2026, the Plaintiffs were directed to give their offer without prejudice

to the rights and contentions of both the parties. However, there was

no offer given and only a communication in the form of an email was

sent by the Plaintiffs on 28 April, 2026 around 12.00 noon. He

submitted that it is not Defendant No. 1, who has come to Court, but it

is the Plaintiff who has instituted the present Suit, against Defendant

No.1, who has to defend himself in this Hon’ble Court. Similarly,

though the Plaintiffs mention about amicably settling the matter,

however, before the District Court, Pune, after 16 April, 2026, the

Plaintiffs have proceeded with the hearing. He submitted that if the

Plaintiffs were genuinely desirous for settlement of this matter, they

would not have proceeded with the hearing before the District Court,

Pune. In any case, they would not have filed the present Suit before

this Court, and the occasion would not have arisen for Defendant

No. 1 to file an Interim Application under Order VII, Rule 11 of the

CPC. The Plaintiffs are now speaking of settlement; however, if they

were genuinely desirous of settlement, after 16 April, 2026, they could

have in a sealed packet without prejudice to the rights and contentions

of both the parties given their offer for settlement to Defendant No.1.

What has been tendered to the Defendant No.1 yesterday, is merely a

three lines letter referring to the properties in the present proceeding

and apart from that, no settlement proposal has been given. He

submitted that even earlier attempts were made for settlement before

the Supreme Court amongst the family members; however, nothing

concrete came up and after eight months, the parties were again

litigating in the Court. He further submitted that on the last two

occasions, when suggestions were made by this Court for mediation,

immediately news reports were published in the local new papers, at

behest of the Plaintiffs, thereby causing very embarrassing position for

Defendant No. 1 to respond to his investors. According to him, the

Plaintiffs’ intention is to merely prolong the whole litigation and

thereafter, capitalize on it by publishing the news on various media

platforms. Therefore, he has specific instructions from Defendant No. 1 that he should argue the matter on merits.

6. Mr. Dwarkadas, Ld. Sr. Counsel appearing for the Plaintiffs,

submitted that if the Court is of the view that the matter ought to be

referred to the mediation then consent of Defendant No. 1 would not

be necessary. He submitted that if the parties are referred to the

mediation, there is no harm to either of the parties, at the most, what

can happen in that, there will be failure report from the Mediator.

However, even if there exists only a 1% possibility of mediation being successful, this Court should refer the matter to mediation. He relied upon the following authorities in support of his submissions :-

(i) Afcons Infrastructure Ltd. vs. Cherian Varkey Constructions

Company Pvt. Ltd. – (2010) 8 SCC 24;

(ii) Mahendra Nath Soral & anr. vs. Ravindra Nath Soral & ors., –

2024 SCC OnLine SC 765;

(iii) R. Ravindranath vs. Greater Hyderabad Municipal Corporation &

ors. – 2026 SCC OnLine SC 150;

(iv) Maxwell Partnership Firm Regd. vs. National Insurance Co. Ltd.

and anr. – 2024 SCC OnLine Del 3340 – Delhi High Court;

(v) Smt. Amalapooh Mary and ors. vs. Sri. V. Ravindra – Writ Petition

No. 51491 of 2016 – Karnataka High Court.

6.1. He also referred to two news articles, wherein the Supreme

Court has opined that the Court should try to make an attempt and

parties should be referred to mediation, if the dispute is between the

family members.

7. I have heard the Ld. Sr. Counsel for both the sides. Generally, this

Court is of the view that in family disputes, parties should try to

amicably reach out to a settlement by themselves or if required,

through a trained mediator. However, to reach at that stage, the Court

must first be satisfied that there exists a possibility of settlement and

that mediation would serve a useful purpose.

Scope of Mediation :-

8. By an amendment of the year 1999 to the CPC, Rule 1-A was

inserted in Order X, which came into effect from 01.07.2002, it

directed the Court to choose for any mode of ADR. The said amended

Rule 1-A reads as under :-

“1-A. Direction of the court to opt for any one mode of alternative

dispute resolution.— After recording the admissions and denials,

the court shall direct the parties to the suit to opt either mode of

the settlement outside the court as specified in sub-section (1) of

section 89. On the option of the parties, the court shall fix the

date of appearance before such forum or authority as may be

opted by the parties.”

8.1 The Mediation Bill, 2021 was introduced in the Rajya Sabha on

20 December, 2021 and the Chairman of Rajya Sabha referred the said bill to the Department-related Parliamentary Standing Committee onpersonal, public grievances, law and justice for examination and report on 21 December, 2021. The Committee held extensive deliberation on the Bill with the stake holders. The Committee prepared it’s Report which was then presented to the Chairman, Rajya Sabha and forwarded to the Speaker, Lok Sabha. In the said Mediation Bill, Clause 6 reads as under :-

“Clause 6 – Pre-litigation mediation

(1) Subject to other provisions of this Act, whether any

mediation agreement exists or not, any party before filing any

suit or proceedings of civil or commercial nature in any court,

shall take steps to settle the disputes by pre-litigation

mediation in accordance with the provisions of this Act:”

8.2 The Standing Committee had also discussed on Clause 6

pre-litigation mediation and thereafter, Clause 6 which became Section

5 in the Mediation Act, 2023, the word “shall” was replaced with a

phrase “may voluntarily and with mutual consent”. The Mediation Act,

2023 was enacted by the parliament on 14.09.2023. However, by a

Notification dated 09.10.2023, the Central Government in exercise of

its powers conferred by sub-section (3) of Section 1 of the Mediation

Act, 2023 appointed 9 October, 2023 as date on which the provisions of

only certain sections of the Mediation Act, 2023 were brought into

force, namely Sections 1, 3, 23, 31 to 38, 45 to 47, 50 to 54, 56 & 57.

Hence, as of date Section 5 of the Mediation Act, 2023 is not into force.

The said Section 5 reads as under :-

“5. Pre-litigation mediation

(1) Subject to other provisions of this Act, whether any mediation

agreement exists or not, the parties before filing any suit or

proceedings of civil or commercial nature in any court, may

voluntarily and with mutual consent take steps to settle the

disputes by pre-litigation mediation in accordance with the

provisions of this Act:”

[Emphasis Supplied]

8.3 Even though Section 5 of Mediation Act, 2023 has not been

notified yet, I am referring to the said section, only to establish the

legislative intent behind it while passing the Mediation Act, 2023. After

considering the Draft Bill and the Standing Committee’s Report, it is

clear that legislature in its wisdom wanted mediation to be kept as an

voluntary act with consent of the parties and not something which is

mandatory in nature.

8.4 Section 89 of CPC was substituted by amended Section 89 of

CPC in the year 2023, which omitted group of words from earlier

Section 89 of CPC namely “shall formulate the terms of settlement and

give them to the parties for their observation and after receiving the

observations of the parties the Court may re-formulate the terms of a

possible settlement and referred the same for”. However, the words

“which may be acceptable to the parties” which stood in the earlier

Section 89 of CPC are retained.

8.5 The Section 89 of CPC earlier to its amendment in the year 2023,

and amended Section 89 of CPC are reproduced below :-

Old Section 89 New Section 89

“89. Settlement of disputes outside the

Court.—

(1) Where it appears to the Court that

there exist elements of a settlement

which may be acceptable to the

parties, the Court shall formulate the

terms of settlement and give them to

the parties for their observations and

after receiving the observations of the

parties, the Court may reformulate the

terms of a possible settlement and

refer the same for:—

(a) arbitration;

(b) conciliation;

(c) judicial settlement

including settlement

through Lok Adalat;

or

(d) mediation.

(2) ……”

“89. Settlement of disputes outside the

Court.-Where it appears to the court

that the dispute between the parties

may be settled and there exists

elements of settlement which may be

acceptable to the parties, the Court

may-

(a) refer the dispute to

arbitration, and thereafter, the

provisions of the Arbitration

and Conciliation Act, 1996(26

of 1996) shall apply as if the

proceedings for arbitration were

referred for settlement under

the provisions of that Act; or

(b) refer the parties to

mediation, to the courtannexed

mediation centre or

any other mediation service

provider or any mediator, as

per the option of the parties,

and thereafter the provisions of

the Mediation Act, 2023 shall

apply as if the proceedings for

mediation were referred for

settlement under the provisions

of that Act; or

(c) refer the dispute to Lok

Adalat, in accordance with the

provisions of sub-section (1)

of section 20 of Legal Services

Authorities Act, 1987(39 of

1987) and thereafter, all other

provisions of that Act shall

apply in respect of the

dispute;

(d) effect compromise

between the parties and shall

follow such procedure as

deemed fit for judicial

settlement.”

9. At the same time, in the year 2023, in the Commercial Courts Act

of 2015, a new chapter, namely Chapter III-A was introduced in which

Section 12-A was newly inserted. Said Section 12-A reads as under :-

“12-A. Pre-Institution Mediation and Settlement —

(1) A suit, which does not contemplate any urgent interim relief

under this Act, shall not be instituted unless the plaintiff

exhausts the remedy of preinstitution mediation in accordance

with such manner and procedure as may be prescribed by rules

made by the Central Government.

(2) The Central Government may, by notification, authorise the

Authorities constituted under the Legal Services Authorities Act,

1987 (39 of 1987), for the purposes of pre-institution mediation.

(3) Notwithstanding anything contained in the Legal Services

Authorities Act, 1987, the Authority authorised by the Central

Government under sub-section (2) shall complete the process of

mediation within a period of three months from the date of

application made by the plaintiff under sub-section (1):

Provided that the period of mediation may be extended for a

further period of two months with the consent of the parties:

Provided further that, the period during which the parties

remained occupied with the pre-institution mediation, such

period shall not be computed for the purpose of limitation under

the Limitation Act, 1963 (36 of 1963).

(4) If the parties to the commercial dispute arrive at a

settlement, the same shall be reduced into writing and shall be

signed by the parties to the dispute and the mediator.

(5) The settlement arrived at under this section shall have the

same status and effect as if it is an arbitral award on agreed

terms under sub-section (4) of section 30 of the Arbitration and

Conciliation Act, 1996 (26 of 1996).]”

[Emphasis Supplied]

10. Hence, as far as Commercial Suits are concerned, a specific

provision is introduced in the Commercial Courts Act, 2015, which

states that before institution of the Suit, pre-litigation mediation

becomes compulsory. However, no such compulsion is introduced in a Civil Suit which is not a Commercial Suit and even if the Government by it’s further Notification brings into force Section 5 of the Mediation Act, 2023, in the said Section, there will be no compulsion since the words used are “may voluntarily” and “with mutual consent”. Earlier Mediation Attempts :-

11. The Plaintiff No. 1 in the year 2023, filed present Suit against the

Defendant No. 1, and apart from filing the present Suit she has also

filed a Suit before the District Court, Pune in the year 2012 and in the

year 2025 has filed one more Suit for partition before the District

Court, Pune, wherein the Defendant No. 1 is a party. The children of

the Plaintiffs have also filed partition Suit in the District Court, Pune,

where Defendant No. 1 herein is added as a party.

11.1 Apart from these four Suits, Probate Petitions are pending before the District Court, Pune. So also father of Plaintiff No. 1 and Defendant No. 1 had filed Suit for recovery of immovable properties before Karad and Satara Courts against Gaurishankar (Original Defendant No. 5), who is brother of Plaintiff No. 1 and Defendant No. 1. The said Suits are pending for hearing.

12. The Supreme Court by it’s Order dated 19 February, 2018, in the

proceedings between Gaurishankar and his mother, directed parties to make an attempt to sort out their disputes outside Court and none

other than renowned mediator Mr. Shriram Panchu, Ld. Sr. Counsel

was appointed as a mediator to make an attempt to resolve the

disputes. By an order dated 07 May, 2018, pursuant to the report of the mediator, time of mediation was extended and it was made clear that it will be open to the mediator to make attempt for settlement of the entire family dispute. However, the mediation failed. By an order

dated 22 October, 2019, the Supreme Court recorded the said fact and

directed the matter to proceed on merits.

12.1 Similarly, mediation attempts were made by the District Court,

Pune in the Suit filed by children of the Plaintiffs. However, the

mediation failed.

12.2 Dr. Tulzapurkar, Ld. Sr. Counsel appearing for Defendant No. 1

showed me correspondences exchanged between the parties in the

year 2025, which shows that the Defendant No. 1 initiated discussions

to reconcile differences and offered to meet and resolve the pending

issues with the Plaintiffs. In response, Plaintiff No. 1 addressed an

Email to the Advocate of Defendant No. 1 which records that on

account of the past act of violence and/or aggression and/or physical

intimidation, Plaintiff No. 1 was reluctant to meet at Amit Bungalow.

13. The authorities on the issue of mediation referred by the parties :

(i) In the latest Judgment of the Supreme Court in the case of

Rupa and Co. Ltd. & anr. vs. Firhad Hakim & ors. , reported in 2025

SCC OnLine SC 355, the Court held that once the proposal of

mediation is opposed by one of the parties, mediation cannot be

thrusted upon such a party. Paragraphs 8.9 and 9 read as under :-

“ 8.9. An interesting turn takes place thereafter. When the very same

contempt petition was listed before the High Court on 9th February

2024, the High Court vide impugned order observed that, considering

the submission of the parties it would be appropriate that the matter is settled through mediation. It, accordingly, appointed a former Judge of the High Court as a Mediator. It will be relevant to note that the said proposal for mediation was specifically opposed by the learned counsel for the appellants. Aggrieved by the same, the appellants have filed the present appeals by way of special leave.

9. We find that the approach of the High Court in passing the

impugned order is totally untenable. When the High Court itself, on

more than one occasions in the contempt proceedings, had found that

the State was bound to comply with the writ of mandamus issued by it vide judgment and order dared 10thFebruary 2020 and had also issued notice to the Chief Secretary of the State for complying with the directions issued by it, it could not have referred the matter for

mediation. It is further to be noted that mediation has to be by the

consent of both the parties. Mediation cannot be thrusted upon either

of the parties. The learned Division Bench of the High Court in the

present case, in spite of the resistance of the learned counsel for the

appellants herein, only on the basis of the statement of the learned

Advocate General appearing in the matter whereby it was submitted

that the State was willing to offer the appellants an alternative piece of

land, has referred the matter to mediation.”

[Emphasis Supplied]

(ii) In Afcons Infrastructure Ltd. (supra), the Supreme Court was

considering the scope of old Section 89 of CPC and the question

whether the said Section empowers the Court to refer the parties to a

Suit to arbitration without the consent of both the parties. Para 44(v)

reads as under :-

“44. The Court should also bear in mind the following

consequential aspects, while giving effect to Section 89 of the Code:

(i) ….

(ii) ….

(iii) ….

(iv) ….

(v) If the court refers the matter to an ADR process (other than

arbitration), it should keep track of the matter by fixing a hearing

date for the ADR report. The period allotted for the ADR process can

normally vary from a week to two months (which may be extended

in exceptional cases, depending upon the availability of the

alternative forum, the nature of case, etc.). Under no circumstances

the court should allow the ADR process to become a tool in the

hands of an unscrupulous litigant intent upon dragging on the

proceedings.”

[Emphasis Supplied]

Considering the fact that Afcons Infrastructure Ltd. (supra) was

delivered in the year 2010, after which date Section 89 of CPC was

amended and the Mediation Act, 2023 has come into force partly and

amendment was also to the Commercial Courts Act in the year 2023

and also considering the contents of para 44(v) of the Afcons

Infrastructure Ltd. (supra), I have no doubt that where one of the

parties is opposing to go to mediation, the Court has to first form an

opinion that even though one of the parties is opposing mediation, the

matter needs to be sent to the mediation.

(iii) Supreme Court in the Judgment of R. Ravindranath (supra),

reported in 2026 SCC OnLine 150 held that they are still of the firm

view that the party should sit, talk and reach to an equitable

settlement. Otherwise, this is going to be long drawn legal proceeding.

Hence, the Court appointed a Mediator.

(iv) In the Judgment of Mahendranath Soral vs. Ravindranath

Soral, reported 2024 SCC OnLine SC 765, from the bare reading of

the Judgment, it seems that the parties were referred to mediation for

the first time and the Court on the facts of that case was of the view

that there existed some kind of an element for settlement.

(v) A Single Judge of the Delhi High Court in the case of Maxwell

Partnership Firm Regd. (supra) was dealing with the commercial

court suit hence, any finding recorded in the Commercial Court suit

as far as mediation is concerned would not be applicable to a Civil

Suit which is not a Commercial Suit, like the present proceeding. In

the Judgment referred by the Plaintiffs of a Single Judge of the

Karnataka High Court in Smt. Amalapooh Mary and ors. (supra) the

Court was dealing with the Order dated 18.08.2016 passed by the

City Civil Judge. The date of the Judgment itself suggests it was prior

to the Mediation Act, 2023 came into force partly, so also Section 89

of CPC was not amended. Neither the Commercial Courts Act, 2015

was amended by inserting Section 12-A. Therefore, as the facts of

these two cases are completely different, the ratio laid down cannot

be considered in the present proceeding.

Illustration :-

14. Considering the entire law of mediation, if by way of

illustration, it is to be explained, in a given case if one party in a

proceedings has given an offer and other party has not accepted it in

full but is very close to the offer given by the first party, in such a

case, just to bridge the gap the Court can come to an opinion that

this is a matter where there is an element of settlement and refer the

parties to mediation. In the present proceeding, this situation has not

arisen.

Conclusion :-

15. The Mediation Act, 2023 does not provide for any mandatory

mediation nor does it confer any power on the court to order

mediation without consent of all parties. The procedure prescribed

under the Act is for a mediation agreement to be executed in writing to submit to mediation. Thus, the mediation contemplated by the Mediation Act is not compulsory but a consensual mediation.

16. As far as the present proceeding is concerned, earlier two

attempts of settlement made by the Apex Court and the District Court, Pune have failed. Even then in the present proceeding, on the first date of hearing before this Court, I suggested that the parties can opt for mediation. However, thereafter, on two dates of hearing, Defendant No.1’s Counsel has come with a case that certain news articles were published which has made his client uncomfortable, as they started receiving calls from their investors.

16.1 Even then on 26 April, 2026 as the matter was adjourned, I

granted parties one more chance without prejudice to their rights and

contentions, to exchange their settlement proposal. However, on the

next date of hearing, after 12 days, no such proposal was exchanged

between the parties.

17. In the light of the above analysis, in my view, I have no doubt

that their does not exist any possibility of settlement through

mediation between the parties. Hence, request made by the Plaintiffs

to refer the matter to the mediation stands rejected.

(RAJESH S. PATIL, J.)