Section 5 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 5 lets parties try to settle a dispute by mediation before they file a suit or proceeding of a civil or commercial nature. It is voluntary and by mutual consent, it works whether or not a mediation agreement exists, and it has two special routes: commercial disputes of Specified Value and motor accident compensation claims.
Under section 5(1), parties may voluntarily and with mutual consent try pre-litigation mediation before filing a suit or proceeding, with or without a mediation agreement. For commercial disputes of Specified Value, the proviso says the mediation shall follow section 12A of the Commercial Courts Act, 2015 and the rules made under it. Section 5(6) to (8) requires a Claims Tribunal to refer certain motor accident claims to mediation if the settlement mentioned there is not reached. The Act comes into force by notification, and the date is not in the text consulted.
Section 5(1): voluntary and consensual
Section 5(1) begins "Subject to other provisions of this Act". It says that "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". Three words carry the rule: voluntarily, mutual and consent. Neither side can be forced into pre-litigation mediation under this sub-section. Section 3(u) defines pre-litigation mediation by reference to section 5.
If your business wants to propose mediation to a customer or supplier before a suit, the safest first step is a written proposal that records the other side's consent. Our mediation services team prepares such proposals and acts as your representative in the process.
The proviso: commercial disputes of Specified Value
The proviso to section 5(1) says pre-litigation mediation "in matters of commercial disputes of Specified Value shall be undertaken in accordance with the provisions of section 12A of the Commercial Courts Act, 2015, and the rules made thereunder". "Commercial dispute" has the meaning in section 3(a), borrowed from section 2(1)(c) of that Act; see our article on that definition. "Specified Value" is a concept of the Commercial Courts Act, explained in our article on its determination, and the pre-institution mediation provision itself is covered in our article on section 12A. The Mediation Act's Ninth Schedule also substitutes that section, and it is described in the article on sections 62 to 65 of this Act. This article does not repeat those provisions or any rules under them; none are in the text consulted.
Section 5(2): tribunals
Section 5(2) says the provisions of sub-section (1) "shall be applicable to the tribunals notified by the Central Government or a State Government, as the case may be". So pre-litigation mediation is available before notified tribunals as well as courts. No notified tribunal is named in the text consulted.
Section 5(3): who conducts pre-litigation mediation
Section 5(3) says that, for sub-sections (1) and (2), "unless otherwise agreed upon by the parties", a mediator who is one of the following shall conduct pre-litigation mediation:
| Clause | Mediator | Source of the panel |
|---|---|---|
| (i) | Registered with the Council | The Mediation Council of India |
| (ii) | Empanelled by a court-annexed mediation centre | A centre established by a court or tribunal (section 3(e)) |
| (iii) | Empanelled by an Authority constituted under the Legal Services Authorities Act, 1987 | A legal services authority |
| (iv) | Empanelled by a mediation service provider recognised under the Act | A provider under Chapter IX |
The words "unless otherwise agreed upon by the parties" mean the parties may choose someone else by agreement. The qualifications and registration conditions for each category are not in the text consulted.
Section 5(4) and (5): requests and panels
Under section 5(4), for pre-litigation mediation under clauses (ii) and (iii) of sub-section (3), a party may request "any person designated for this purpose by the High Courts, or an Authority constituted under the Legal Services Authorities Act, 1987, as the case may be". Section 5(5) requires the court-annexed mediation centre and an Authority under that Act to maintain a panel of mediators for the purposes of pre-litigation mediation.
Taken together, the Act gives a party two routes into a court-linked pre-litigation mediation: a request to the person designated by the High Court, or a request to the legal services Authority. The manner of making the request is not in the text consulted.
Section 5(6) to (8): motor accident claims
Section 5(6) begins "Notwithstanding anything contained in sub-sections (1) and (2) and the Motor Vehicles Act, 1988". When an application for compensation arising out of an accident is made before the Claims Tribunal, "if the settlement as provided for in section 149 of that Act is not arrived at between the parties", the Claims Tribunal "shall refer the parties for mediation to a mediator or mediation service provider under this Act". The reference to "section 149" of the Motor Vehicles Act is quoted as printed and this article does not describe that section.
Unlike sub-section (1), this reference is a duty of the Tribunal, not a voluntary step. What follows:
- Section 5(7): if the parties arrive at a settlement agreement under sub-section (6), it "shall be placed before the Claims Tribunal for its consideration".
- Section 5(8): if the parties do not reach a settlement agreement, the non-settlement report prepared by the mediator "shall be forwarded to the Claims Tribunal, which has referred the matter for mediation, for adjudication".
An insurer or a claimant involved in such a claim should note that the Act speaks of the settlement being placed before the Tribunal for "consideration", and the text consulted does not say more about that step.
Pre-litigation mediation and later steps
Pre-litigation mediation is the entry point for the rest of the Chapter V procedure. Time limits, confidentiality and the settlement agreement work as for any mediation; see the article on the time limit under section 18. Section 29 excludes the mediation period from limitation, covered in the article on sections 21, 24 and 29. Section 7 separately lets a court or tribunal refer parties to mediation at any stage after a proceeding has begun; see the article on section 7.
Need help with pre-litigation mediation?
Choosing the right route, whether a court-annexed centre, a legal services Authority or a mediation service provider, depends on the dispute and the contract. We can help you plan the approach and prepare your side through our mediation services.
Key takeaways
- Pre-litigation mediation under section 5(1) is voluntary and by mutual consent, with or without a mediation agreement.
- Commercial disputes of Specified Value follow section 12A of the Commercial Courts Act, 2015 and its rules.
- Section 5(3) lists four sources of mediator, unless the parties agree otherwise.
- Motor accident claims before a Claims Tribunal go to mediation if the settlement mentioned in section 5(6) is not reached.
- The Act comes into force by notification; check the dates.
Read next
- Section 6 of the Mediation Act, 2023: disputes not fit for mediation
- Section 7 of the Mediation Act, 2023: power of court or tribunal to refer parties
- Section 12A of the Commercial Courts Act, 2015: pre-institution mediation
- The Mediation Act 2023 for commercial and trade disputes
Disclaimer: Based on the Mediation Act, 2023 as enacted and published in the Gazette of India on 15 September 2023, as consulted on 2 October 2026. The Act comes into force by notification; the commencement of each provision, the rules and the regulations should be checked. This article is general information, not legal advice; check the official text before acting.