6.6.9 Alternative dispute resolution: pre- and post-litigation mediation
Under the Commercial Courts Act, 2015, parties are usually expected to explore pre-litigation mediation. If the plaintiff does not seek urgent relief, Section 12A of the Commercial Courts Act, 2015, mandates pre-litigation mediation.
Section 89 of the Code of Civil Procedure also recognizes courts’ inherent power to refer parties to arbitration, conciliation, mediation or other forms of alternative dispute resolution. A court can exercise this power at any stage if there exist elements of an acceptable settlement. The parties may also request such a referral themselves.
Almost all district courts and High Courts in India have mediation centers for pre- and post-litigation mediation. These mediation centers are usually attached to each of the High Courts or district courts and are managed by a fully functional secretariat. The mediators at these centers are trained professionals. It is also possible for parties to seek the appointment of an expert mediator with specialized technical learning, skills, experience and domain knowledge. Mediation proceedings have proved to be quite efficient in almost all parts of the country. Significant success has been generally observed in resolving IP rights disputes and, most recently, in the resolution of certain SEP-related disputes.209
Justice Prathiba M. Singh, “Samadhan-Mediation in Delhi” in National Conference on Mediation and Information Technology (High Court of Gujarat ed., 2022). “In Intellectual property rights (“IPR”) disputes however, the average percentage of settlements arrived at is a whopping 84.50%…Notably, 2017 was a rare year for the [Delhi High Court Mediation and Conciliation] Centre which saw 100% of all IPR matters referred, being settled. Even thereafter the percentages of settlement in IPR matters are hovering around 85% to 95% in the pre-pandemic years. Compared to IPR matters, the percentage of commercial disputes that are settled is comparatively lesser…”