An International Guide to
Patent Case Management for Judges

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6.6.9 Alternative dispute resolution: pre- and post-litigation mediation

Under the Commercial Courts Act, 2015, parties are usually expected to explore pre-litigation mediation. If the plaintiff does not seek urgent relief, Section 12A of the Commercial Courts Act, 2015, mandates pre-litigation mediation.

Section 89 of the Code of Civil Procedure also recognizes courts’ inherent power to refer parties to arbitration, conciliation, mediation or other forms of alternative dispute resolution. A court can exercise this power at any stage if there exist elements of an acceptable settlement. The parties may also request such a referral themselves.

Almost all district courts and High Courts in India have mediation centers for pre- and post-litigation mediation. These mediation centers are usually attached to each of the High Courts or district courts and are managed by a fully functional secretariat. The mediators at these centers are trained professionals. It is also possible for parties to seek the appointment of an expert mediator with specialized technical learning, skills, experience and domain knowledge. Mediation proceedings have proved to be quite efficient in almost all parts of the country. Significant success has been generally observed in resolving IP rights disputes and, most recently, in the resolution of certain SEP-related disputes.209