What Happens If One Party Does Not Attend Mediation?

Key Takeaways

• When one party does not attend mediation, the mediator generally cannot decide the dispute against the absent party because mediation is a consensual and non-adjudicatory process.
• In voluntary mediation, repeated non-attendance may prevent the process from continuing and may ultimately result in termination of mediation and a non-settlement report.
• In pre-institution mediation for commercial disputes, refusal or failure of the opposite party to participate may result in the process being treated as a non-starter.
• In court-referred mediation, deliberate or unjustified absence may lead to costs or other procedural directions, depending on the applicable court rules.
• A court may require parties to attend or participate in mediation, but no party can ordinarily be forced to accept a settlement.
• Genuine reasons such as illness, emergencies or unavoidable circumstances may justify rescheduling of the mediation session.
• Failure to attend mediation does not automatically mean that the absent party loses the underlying legal dispute.

What Happens When One Party Does Not Participate in Mediation?

If one party does not attend mediation, there is generally no automatic decision against that party. Mediation is fundamentally different from litigation or arbitration because the mediator does not have the authority to decide who is right or wrong.

The mediator acts as a neutral facilitator and helps the parties communicate, identify issues and explore possible settlement terms. Meaningful mediation normally requires the participation of all necessary parties. If one party repeatedly refuses to participate, the mediation may have to be discontinued.

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The exact consequence depends on the nature of the mediation.

Broadly, three situations may arise:

• In voluntary mediation, non-attendance may simply prevent mediation from proceeding and eventually lead to termination of the process.
• In pre-institution mediation in commercial disputes, failure of the opposite party to participate may result in the mediation being treated as a non-starter.
• In court-referred mediation, deliberate absence may attract costs or other directions under the applicable mediation rules.

Therefore, non-attendance must always be examined in the context of the legal framework under which the mediation is taking place.

Is Attendance in Mediation Compulsory?

Attendance in mediation is not always compulsory. Whether a party is required to attend depends on how the mediation has been initiated.

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The Mediation Act, 2023 recognises mediation as a consensual process. Parties may voluntarily choose mediation before approaching a court or tribunal. Even where a court refers parties to mediation, settlement itself remains voluntary.

A party cannot normally be forced to accept a settlement simply because mediation has been initiated.

However, there is an important distinction between:

• being required to attend or participate in mediation, and
• being required to settle the dispute.

A court may direct parties to participate in mediation in appropriate cases, particularly where court rules provide for such referral. This does not mean that the court or mediator can force them to settle.

What Happens in Voluntary Mediation If One Party Is Absent?

Voluntary mediation depends heavily on the willingness of both sides to participate.

If one party does not attend the first session, the mediator or mediation institution may contact the absent party and determine whether the absence was accidental, unavoidable or intentional. A further session may be scheduled where appropriate.

However, if the party clearly refuses to participate, there may be little purpose in continuing the mediation.

Mediation May Be Terminated

Under the Mediation Act, 2023, mediation can conclude without settlement where the mediator determines that further efforts are unlikely to produce an agreement.

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In cases where settlement is not reached, a non-settlement report may be issued.

The purpose of this report is not to declare which party was responsible for the failure of mediation. It simply records that the mediation did not result in a settlement.

No Decision Can Be Passed Against the Absent Party

The mediator cannot hear one side and then pass an order against the absent party.

This is because mediation is not adjudication. A mediator does not possess powers similar to those of a judge or arbitrator.

The absence of one party therefore does not result in an ex parte mediation decision.

Can the Mediator Continue Without One Party?

A mediator may conduct limited discussions with the attending party, particularly during preliminary meetings or private sessions. However, a final settlement normally cannot be achieved unless all parties whose rights and obligations are affected agree to its terms.

For example, if two parties are involved in a property dispute and only one attends mediation, the mediator may explain the process or understand that party’s concerns. However, no binding settlement concerning the absent party’s rights can ordinarily be imposed.

Mediation requires consent.

Even where discussions continue temporarily, the absence of a necessary party will usually prevent a complete resolution.

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What Is a Non-Settlement Report?

A non-settlement report records that mediation has concluded without an agreement between the parties.

Under the Mediation Act, 2023, where no settlement is reached, the mediator may prepare such a report in the prescribed manner.

The report is important because it formally closes the mediation process.

What Does the Report Contain?

A non-settlement report generally does not contain details about:

• offers made during mediation;
• admissions made by either party;
• reasons why settlement failed;
• confidential discussions between the parties;
• the mediator’s opinion about the merits of the dispute; or
• allegations that one party acted unreasonably.

This protects the confidential and non-adversarial nature of mediation.

What Happens If One Party Does Not Attend Pre-Institution Mediation?

A more specific legal position applies to certain commercial disputes.

Section 12A of the Commercial Courts Act, 2015 requires pre-institution mediation before filing certain commercial suits that do not seek urgent interim relief.

The process is governed by the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018.

Where an applicant approaches the designated authority for mediation, notice is issued to the opposite party.

If the opposite party fails to respond or refuses to participate, the mediation may be treated as a non-starter.

What Is a Non-Starter Report in Commercial Mediation?

A non-starter report is issued where the pre-institution mediation process cannot begin because the opposite party does not participate.

This is different from a normal non-settlement report.

A non-settlement report usually means that mediation took place but no agreement could be reached. A non-starter report means that meaningful mediation did not commence because one party did not participate.

When Can a Non-Starter Report Be Issued?

The Commercial Courts Rules contemplate situations such as:

• the opposite party does not respond to the first notice;
• a final notice is issued but the party still fails to appear;
• the opposite party expressly refuses to participate; or
• additional time is granted for appearance but the party still remains absent.

In such circumstances, the authority may close the mediation process and issue a non-starter report.

The applicant may thereafter proceed in accordance with the law.

Can a Commercial Suit Be Filed After the Other Party Refuses Mediation?

Yes. Where pre-institution mediation has been properly initiated and the opposite party refuses to participate, the applicant is not expected to wait indefinitely.

Once the mediation authority records that the process could not commence and issues the relevant report, the applicant may ordinarily proceed with the commercial suit, subject to other legal requirements.

The refusing party therefore cannot indefinitely block litigation merely by avoiding mediation.

This is an important feature of the pre-institution mediation framework.

What Happens in Court-Referred Mediation If One Party Does Not Attend?

Court-referred mediation is different from purely private mediation.

Where a court has specifically directed parties to appear before a mediation centre or mediator, failure to attend may amount to non-compliance with the court’s directions.

Different High Courts have framed mediation rules governing court-referred disputes. These rules may authorise the court to take appropriate action where a party deliberately avoids mediation.

Possible consequences may include:

• imposition of costs;
• a direction to appear before the mediator on another date;
• recording of non-compliance;
• further procedural directions; or
• such other orders as may be permitted under the applicable rules.

The precise consequence depends on the mediation rules applicable to the court concerned.

Can a Court Force a Party to Settle in Mediation?

No. A court may direct participation in mediation, but it cannot ordinarily compel a party to accept settlement terms.

This distinction is fundamental.

Mediation is based on self-determination. The final decision to settle rests with the parties.

A court may expect parties to participate sincerely and comply with procedural directions, but the outcome of mediation remains voluntary.

Therefore, a party may lawfully attend mediation, participate in discussions and ultimately decide that no acceptable settlement is possible.

That is different from refusing even to attend despite a court direction.

Can Costs Be Imposed for Not Attending Mediation?

In appropriate cases, yes.

Courts have recognised that unjustified or deliberate failure to participate in court-referred mediation may justify an order of costs, particularly where applicable mediation rules permit such action.

Costs may be considered where a party:

• repeatedly ignores mediation dates;
• deliberately avoids appearance;
• fails to comply with the referring court’s directions; or
• causes unnecessary delay without sufficient cause.

However, costs are not automatic in every case of absence.

The court will ordinarily consider the circumstances and determine whether the absence was intentional and unjustified.

What If There Is a Genuine Reason for Absence?

A genuine inability to attend mediation is different from deliberate refusal.

Illness, medical emergencies, unavoidable travel problems, bereavement or other serious circumstances may constitute sufficient reasons for absence.

Where a genuine reason exists, the appropriate course is generally to inform the mediator, mediation centre or concerned authority as early as possible.

A fresh date may be fixed depending on the applicable rules and circumstances.

The legal consequences are therefore likely to be different where the absence is bona fide rather than wilful.

Can Mediation Be Rescheduled If One Party Does Not Attend?

Yes, mediation can often be rescheduled.

The mediator or mediation institution may provide another opportunity to participate where the circumstances justify it.

For instance, in pre-institution commercial mediation, the rules permit the opposite party to seek additional time for appearance in certain situations.

Similarly, mediation centres dealing with court-referred matters may fix another session where a party has provided a reasonable explanation.

However, repeated failure to attend may eventually result in closure of the mediation.

Can a Party Simply Refuse to Participate in Mediation?

The answer depends on the type of mediation.

In Voluntary Mediation

A party may generally refuse to participate because the process is based on consent.

The consequence is usually that mediation cannot proceed.

In Statutory Pre-Institution Mediation

The opposite party may choose not to participate, but such refusal may result in a non-starter report and allow the applicant to move ahead with litigation.

In Court-Referred Mediation

A party may not be free to ignore a specific court direction requiring attendance.

Failure to comply may expose the party to procedural consequences, including costs, depending on the applicable court rules.

Does Non-Attendance Mean the Case Is Lost?

No. Non-attendance at mediation does not automatically mean that the absent party loses the underlying legal dispute.

The merits of the dispute remain separate.

If mediation fails, the matter may proceed before the competent court, tribunal or arbitral forum. The dispute will then be decided according to applicable law and evidence.

The mediator does not determine liability simply because one party failed to attend.

However, procedural consequences arising from non-compliance with a court direction may still be relevant independently of the merits.

Can the Mediator Pass an Ex Parte Order?

No. A mediator cannot pass an ex parte order similar to a civil court.

The mediator’s function is facilitative rather than adjudicatory.

This is also one of the major distinctions between arbitration, conciliation and mediation. An arbitrator exercises adjudicatory authority and may make a binding award, whereas a mediator assists parties in reaching their own settlement.

Therefore, where one party is absent:

• no judgment can be given;
• no liability can be imposed;
• no damages can be awarded;
• no settlement can be forced; and
• no rights can ordinarily be determined against the absent party.

This distinction is central to understanding mediation.

Can the Attending Party Get a Settlement Without the Other Party?

A settlement affecting both parties generally requires the consent and signatures of the parties concerned.

A unilateral document prepared by one party does not become a mediated settlement merely because it was discussed before a mediator.

Under the Mediation Act, a mediated settlement agreement must reflect an agreement actually reached between the parties.

Therefore, the presence and consent of all relevant parties is usually necessary before a settlement becomes binding.

Can the Mediator Report That a Party Did Not Cooperate?

Confidentiality is one of the main principles of mediation.

A mediator is generally not expected to report confidential negotiations, settlement offers or statements made during the process.

The Mediation Act also limits what may be included in a non-settlement report. Such a report is not intended to assign blame or disclose the conduct of parties during negotiations.

However, court-referred mediation may be governed by specific procedural rules under which the mediation centre may inform the referring court about failure to attend.

Reporting non-attendance is different from revealing confidential settlement discussions.

Is Failure to Attend Mediation Evidence Against a Party?

Ordinarily, failure of settlement itself cannot be treated as proof that one party’s legal case is weak.

Statements made during mediation, offers exchanged and concessions proposed are generally protected by confidentiality.

A court hearing the substantive dispute should decide the case on admissible evidence and applicable law.

However, where a party disobeys a specific judicial direction requiring attendance, the court may independently deal with that procedural default.

Therefore, two issues must be kept separate:

1. the merits of the dispute; and
2. compliance with mediation-related procedural directions.

What Happens After Mediation Fails Due to Non-Attendance?

The next step depends on the stage at which mediation took place.

Before Litigation

If voluntary mediation fails, the parties may pursue litigation, arbitration or another available dispute resolution mechanism.

During Pre-Institution Commercial Mediation

Where the opposite party refuses to participate and a non-starter report is issued, the applicant may ordinarily proceed with the commercial suit.

During Pending Court Proceedings

If a pending case has been referred to mediation and mediation fails, the matter generally returns to the referring court.

The court proceedings then continue from the appropriate stage.

Failure of mediation does not ordinarily terminate the underlying case.

Difference Between Non-Attendance and Failure to Settle

Non-attendance and failure to settle are not the same.

A party may attend every mediation session, negotiate seriously and still refuse the final proposal. That is a legitimate outcome of mediation because settlement is voluntary.

Non-attendance means that the party does not participate in the process itself.

This distinction matters particularly in court-referred mediation. A court may expect attendance and genuine participation, but it cannot require acceptance of a particular settlement.

What Should Happen Before Mediation Is Closed for Non-Attendance?

Before closing the mediation, the mediator or mediation institution will ordinarily consider the governing procedure.

Depending on the situation, this may involve:

• confirming whether proper notice was served;
• determining whether the absence was intentional;
• contacting the absent party;
• giving another opportunity to appear;
• considering any request for adjournment;
• recording that settlement efforts cannot continue; and
• issuing the appropriate non-settlement or non-starter report.

The precise process differs between private mediation, institutional mediation and statutory mediation.

Why Non-Attendance Can Defeat the Purpose of Mediation

Mediation works because parties are directly involved in finding a solution.

Unlike litigation, where a judge can decide the matter despite disagreement, mediation depends upon communication and consent.

As an alternative dispute resolution mechanism, mediation is designed to give parties greater control over the outcome while providing a structured environment for negotiation.

Repeated non-attendance can prevent:

• identification of the real issues;
• exchange of settlement proposals;
• clarification of misunderstandings;
• consideration of commercial or personal interests;
• negotiation of mutually acceptable terms; and
• preparation of a binding mediated settlement agreement.

Therefore, although absence does not automatically result in legal liability, it can make settlement practically impossible.

Conclusion

When one party does not attend mediation, the main consequence is usually that the mediation cannot proceed effectively. The mediator cannot impose a settlement or decide the dispute against the absent party. In voluntary mediation, the process may simply end without settlement. In commercial pre-institution mediation, a non-starter report may be issued. In court-referred mediation, unjustified absence may also attract costs or procedural directions.

The legal effect of non-attendance therefore depends on the nature of the mediation and the rules governing it. The most important distinction is that participation may sometimes be procedurally required, but settlement remains voluntary. Mediation succeeds only when parties are willing to engage meaningfully in the process and arrive at mutually acceptable terms.