Introduction: The Everyday Struggle for Justice
In the courtroom, it is often seen the silent fatigue on the face of a woman waiting for her maintenance order, sometimes clutching her child’s hand, sometimes sitting alone with eyes fixed on the floor. For her, justice is not an abstract principle, it is the means to secure rent for the month, school fees for her child, or medicines for her aging parent. Yet, despite the urgency of her need, the adversarial system often tests her patience with repeated adjournments, procedural hurdles, and prolonged litigation.
It is in this backdrop that the Mediation Act, 2023 arrives as a breath of fresh air. For the first time, mediation has been given a dedicated statutory framework. Among its many provisions, Section 5, which permits pre-litigation mediation even without a prior agreement, stands out as a transformative tool. It offers disputing parties an opportunity to talk before they fight, to resolve before they litigate. And in doing so, it promises not only to reduce backlog but also to restore dignity and equity in justice delivery.
Section 5: A Doorway Before the Courtroom
Section 5 provides that any party to a civil or commercial dispute may, before filing a case, voluntarily and with the consent of the other party, seek to resolve the matter through mediation. Even without a contractual clause, parties can attempt settlement, and the time spent in this process is excluded from the limitation period.
This seemingly simple provision is revolutionary. It creates a doorway before the courtroom, a threshold space where conversation is preferred over confrontation. Unlike litigation, which immediately positions parties as adversaries, pre-litigation mediation keeps the possibility of cooperation alive.
In family disputes, maintenance claims, custody battles, property divisions, this doorway can mean everything. It can mean that a child’s school fee is paid on time, that a young mother does not spend months in uncertainty, or that a family’s dignity is preserved without airing private grievances in open court.
Why Mediation Matters: Justice Beyond Adjudication
Mediation embodies three values that are often missing in traditional litigation: participation, problem-solving, and preservation.
- Participation ensures that both parties retain agency. Instead of orders being imposed from above, outcomes are shaped by those who must live with them.
- Problem-solving means that the process looks at interests rather than just rights. For example, a father may not only want to reduce maintenance but also ensure continued contact with his child.
- Preservation sustains relationships. Unlike a judgment, which often leaves behind scars, mediation allows families, neighbours, or business partners to move forward without irreparable bitterness.
These values redefine justice, not as a declaration of winners and losers, but as a restoration of balance and fairness.
Mediation in Practice: Real-Life Scenarios
The potential of Section 5 becomes most vivid when seen through everyday disputes that regularly reach the courtroom:
1. The Maintenance Case
A young wife seeks ₹20,000 per month to support herself and her child. The husband, struggling with debts, offers ₹15,000 and to directly cover medical expenses. In court, such a dispute may take months of pleadings, interim applications, and execution petitions. By contrast, under Section 5 mediation, within sixty days the parties may agree to ₹15,000 in monthly support, direct school fee payment, and a ₹2 lakh fixed deposit for the child’s future. The mediated settlement, once signed, is enforceable like a decree. This outcome avoids litigation cost, preserves dignity, and secures the child’s welfare.
2. The Custody Dispute
In a custody battle, each hearing prolongs the anxiety of a child caught in between. Parents arrive bitter, their lawyers locked in arguments. Instead in mediation, the focus shifts; Where will the child feel most comfortable? How can both parents remain meaningfully involved? A mediated parenting plan, holidays with one parent, weekdays with another, emerges not from legal entitlements but from the best interests of the child.
3. The Partition Suit
Two brothers, unable to agree on division of ancestral property, approach court. Their quarrel risks dragging for years, eroding both the value of the property and the family bond. In mediation, they negotiate a settlement; one takes agricultural land, the other receives urban property of equivalent value. The matter resolves within months, saving both family ties and resources.
These illustrations show that mediation under Section 5 is not an abstract concept, it is a practical alternative that reshapes lives and need of the hour.
The Promise for Family and Maintenance Matters
Section 5 carries special promise in the sphere of family and maintenance disputes, where the stakes are not just legal but profoundly human. Women and children, often the most vulnerable in such cases, cannot afford to wait for years while their petitions meander through the courts. The relevance of Section 5 lies precisely here, it creates a structured doorway before the courtroom, allowing parties to explore dialogue and resolution even without a prior mediation agreement. This provision ensures that justice does not remain trapped within the walls of adversarial litigation but becomes accessible at the very threshold, where timely intervention matters most.
Mediation under Section 5 provides a lifeline by offering relief within weeks rather than years, ensuring that urgent needs such as rent, school fees, or medical care are met without delay. Beyond speed, mediation brings with it a rare flexibility. Unlike the rigid framework of statutory maintenance provisions, mediated settlements can take many forms such as a lump-sum deposit to secure a child’s future, transfer of property to provide stability, or insurance coverage to guard against unforeseen hardship. In one matter, a young mother, instead of waiting endlessly for interim orders, was able to secure through mediation not only a monthly allowance but also a dedicated education fund for her daughter, a solution no decree would have so creatively provided.
Mediation also preserves confidentiality, shielding families from the humiliation of exposing private disputes in open court. For an elderly couple locked in a property tussle with their children, mediation allowed them to quietly resolve their matter with dignity, away from public scrutiny, and preserve fragile family bonds. Most importantly, mediated settlements are not hollow promises, once signed, they carry the binding force of a decree, ensuring compliance and stability. At a systemic level, every such resolution lightens the crushing burden on family courts, freeing judges to focus on genuinely intractable disputes. Delay and hostility corrode relationships and diminish the dignity of those seeking support, Section 5 offers a humane and practical alternative, making justice relevant, reachable, and responsive at the very moment it is most needed.
Challenges and Safeguards
Mediation, however, is not a panacea, and the promise of Section 5 will be realized only if certain challenges are addressed with care. The foremost requirement is the presence of trained mediators who are sensitive to issues of gender, vulnerability, and power imbalance, for without this awareness mediation may replicate the very inequalities it seeks to resolve.
Equally vital is the need to build awareness among lawyers and litigants, many of whom continue to dismiss mediation as “soft justice” or an unnecessary diversion from the courtroom. Safeguards must also be in place to ensure that weaker parties are not coerced into settlements that compromise their rights or dignity, for mediation must remain a process of consent, not compulsion.
Infrastructure and accessibility, especially in rural districts, are another pressing concern, making the development of mediation centres and online platforms essential for inclusivity. Without these elements, training, awareness, safeguards, and infrastructure, mediation risks being reduced to a mere procedural checkbox rather than a meaningful path to justice.
Conclusion: From Adjudication to Resolution
The Mediation Act, 2023 repositions mediation at the heart of India’s justice system. Section 5, in particular, opens a new possibility, that disputes, especially in family and maintenance matters, need not escalate into prolonged adversarial struggles. Instead, they can be addressed at the very threshold, through dialogue and negotiation, and resolved with dignity, creativity, and compassion. This shift is not merely procedural, it is philosophical, recognizing that many disputes demand healing rather than combat, and restoration rather than victory.
The true measure of justice lies not only in the correctness of judgments but also in their timeliness, accessibility, and humaneness. A decree pronounced after years of litigation may satisfy the law but fail the lives it was meant to protect. Section 5 offers us a chance to make justice swifter, fairer, and kinder. It allows families to find solutions tailored to their needs, ensures children receive timely support, and restores dignity to spouses who otherwise endure the harsh glare of adversarial proceedings.
The success of this vision, however, depends on the active involvement of lawyers, judges, mediators, and, crucially, the network of Legal Services Authorities under the control of NALSA. Across every district in the country, the District Legal Services Authorities (DLSAs) already provide mediation infrastructure and have panels of trained mediators. These institutions, backed by statutory authority, are uniquely positioned to operationalize Section 5. They have the physical framework, the organizational structure, and the outreach capacity to make pre-litigation mediation not just an option, but a living reality for litigants. With proper sensitization, NALSA and its subordinate bodies can ensure that mediation centres are approachable, that mediators are skilled in handling family dynamics and gender issues, and that parties, especially women and children, are guided towards fair settlements in an environment of trust and confidentiality.
If used meaningfully, this infrastructure can transform the justice landscape. Every dispute settled through Section 5 mediation not only provides timely relief to the parties but also lightens the docket of overburdened courts, allowing judges to devote time to matters requiring formal adjudication. For society at large, it signals a cultural change, that dialogue is not weakness, but strength, that compromise is not surrender, but wisdom.
The Mediation Act, 2023 has given us the tools. The challenge now is to wield them wisely, through trained mediators, robust institutional support, and a change in mindset. The responsibility rests not just with courts but also with the legal services framework, bar associations, and civil society to promote mediation as a preferred path. Ultimately, the promise of Section 5 must be measured in human terms, for the woman waiting in court for maintenance, for the child whose future hangs in balance, and for countless families who deserve justice not only in law but in life.
[Dr. Sukhda Pritam is presently serving as an Additional District & Sessions Judge in State of Haryana, presiding over the exclusive court for heinous crimes against women.]
CITE AS: Dr. Sukhda Pritam, ‘Mediation and Justice in India: The Promise of Section 5 of the Mediation Act, 2023’ (The Contemporary Law Forum, 1st December 2025) <https://tclf.in/2025/12/01/https://tclf.in/2025/12/01/mediation-and-justice-in-india-the-promise-of-section-5-of-the-mediation-act-2023/>date of access.