India introduces new Mediation Act
India’s approach to dispute resolution underwent a significant transformation with the enactment of the Mediation Act of 2023, effective from September 15, 2023. Despite mediation being used as a pre-litigation or dispute resolution method, this legislation formalizes and strengthens the country’s mediation procedures, establishing it as a highly effective alternative to prolonged litigation.
The Mediation Act of 2023, aimed at promoting and facilitating mediation, places emphasis on institutional, online, and community mediation to resolve disputes in a time-bound manner. Section 18 of the Act mandates the completion of mediation within 120 days from the initial appearance, extendable to 180 days by mutual agreement.
The act introduces key features, including the establishment of a regulatory body overseeing mediator and institution registrations and enforcing mediated settlement agreements.
According to experts, the Act plays a pivotal role in resolving complex intellectual property (IP) disputes, particularly cases involving trademark infringement and passing off. The flexibility of mediation in selecting mediators with technical expertise makes it a preferred avenue for such disputes.
IP disputes, involving patents, geographical indications, trade secrets, etc., often contain technical aspects challenging for courts to quickly comprehend. Litigation on IP rights issues becomes tedious and time-consuming, limiting the time for IP rights owners to recover associated costs and gain monetary benefits.
Flaws in the mediation process, such as the absence of stand-alone laws on mediation and varying approaches by different mediators, led many IP rights owners in India to hesitate in taking the mediation route. The Mediation Act of 2023 plays a crucial role in refining the mediation system, addressing these flaws, and aiming to convert skeptics into believers in its efficacy.
One of the act’s notable strengths in resolving IP disputes is the provision for pre-suit mediation. Section 5(1) allows parties to engage in mediation before court filing, irrespective of the existence of a mediation agreement. Pre-litigation mediation is defined as the process of undertaking mediation to settle disputes before filing a claim in court.
Aditi Verma Thakur, an expert in trademark, licensing & franchising in India highlights that pre-litigation mediation of commercial disputes must align with Section 12-A of the Commercial Courts Act, making pre-institution mediation a mandate unless urgent interim reliefs are sought.
However, she notes the challenge in IP lawsuits, where urgent interim reliefs, such as conducting civil raids for trademark infringement or counterfeiting cases, are often crucial. Choosing pre-litigation mediation may alert infringers in advance, affecting the element of surprise associated with such actions. Therefore, the act aims to strike a balance in safeguarding the rights holder’s interests in IP disputes.
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– You could see Procedure of Trademark in India here.
– You could visit here to see Required documents of filing trademark in India.
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