Volume 20 No 22 (2022)
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Status Of Pre-Suit Mediation In Eliminating Conflicting Legal Principles In Indian Commercial Disputes
Anindita Sarkar (Dutta), Prof. (Dr.) Ishita Chatterjee
Abstract
Pre-litigation is an alternative to going to court that allows parties to settle their differences in an informal setting with the help of a neutral third party. The parties' preferred outcome is typically reached in pre-litigation negotiations. Pre-suit mediation can be useful for a number of reasons. First, certain contracts mandate mediation before arbitration or litigation is filed; second, the reliability of arbitration tribunals, judges, and juries is questionable at best. Furthermore, litigation can be extremely taxing on plaintiffs' emotional resources, particularly in highly charged instances. The parties' relationship may also worsen during the course of the dispute. Furthermore, when litigation continues and conflicts grow, the case may get more complex. The high cost of protracted litigation is a powerful argument in favour of early mediation. Commercial dispute mediation is now mandated by law according to the Commercial Courts Act of 2015. The Act states that parties may engage in pre-litigation measures when an immediate need for interim relief is not anticipated. The method for such pre-litigation mediations is laid forth in the Commercial Courts (pre - institution mediation and settlement) Rules, 2018. The provision's required nature has been upheld by the courts;therefore, it may encourage parties to a possible adversarial action to settle their disagreement amicably.The courts' interpretations of whether Section 12-A is required or merely advisory diverged after its implementation. The purpose of this article is to prove that Section 12A of the Commercial Courts Act, 2015 is useful despite the many legal and constitutional flaws that have been pointed out about it.
Keywords
pre-suit mediation, commercial dispute, interim relief, win-win situation, law commission report, overburdened judiciary
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