Is Mediation Mandatory? A Constitutional Analysis of Pre-Litigation Mediation

ABSTRACT

This paper analyses the constitutionality of mandatory pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015 under the access to justice framework in India. The major question in the present research is whether the conditions laid down to access to courts, including mandatory mediation, amounts to a reasonable procedural filter or an impermissible restriction on the fundamental right to have access to justice under Articles 14 and 21 of the Constitution. Using a doctrinal legal methodology, the study comprehends the constitutional jurisprudence on access to justice, statutory design of pre-litigation mediation in Section 12A of the Commercial Courts Act, 2015 and the Mediation Act, 2023 as well as empirical critiques of its implementation. It uses the proportionality test to question the validity of mandatory mediation as a legitimate, rationally connected, necessary, and balanced method of achieving judicial decongestion and early settlement. The paper makes the following point: Although mandatory mediation is not per se unconstitutional, its constitutionality is contingent upon demonstrable effectiveness, sufficient institutional capacity, and effective safeguards against arbitrariness and delay. As a solution it suggests a structured opt-out model, greater institutional support, an increased clarity of urgency standards and a more effective disincentive to bad faith non-participation so that mediation can genuinely facilitate, rather than obstruct, access to justice.