When One Side Fails to Show
Reflections from a Cancelled Commercial Mediation
By Christina Knorr, Fire Safety Expert and Expert Witness
Recently, I was scheduled to attend a commercial dispute mediation, not in my usual role as a technical consultant behind the scenes, nor as a mediator, but this time as an expert witness engaged by one of the parties. My role was to clarify technical matters and assist in narrowing the dispute, contributing to the parties’ understanding of the issues in contention.
The mediation had been planned well in advance. Both parties had engaged actively in the lead-up: exchanging evidence, clarifying claims and preparing submissions. The process was structured and collaborative giving a positive indication that both sides were serious about resolution.
But on the day of mediation, that assumption quickly fell apart.
One party arrived on time, accompanied by their legal representatives, technical advisors and a person with authority to settle. The other party sent only their legal team. No client. No decision-maker. No ability to negotiate or resolve the matter.
As a result, the mediation was cancelled.
The Importance of Full Participation
While mediation is a consensual process, it is governed by clear procedural expectations which are often embedded in court orders, consent directions, or institutional rules such as those of the Resolution Institute or Australian Centre for International Commercial Arbitration (ACICA). A core obligation in any formal mediation is for each party to attend with someone who has authority to settle the dispute.
Sending a legal representative, no matter how capable they are, does not satisfy that requirement. When one party turns up and is unable to engage meaningfully, the process cannot proceed.
Legal and Procedural Consequences
Courts increasingly view failure to participate in mediation seriously, especially where it is court-ordered or a condition of ongoing litigation. Consequences can include:
- Adverse costs orders, including indemnity costs for wasted preparation;
- Criticism in judicial remarks, impacting credibility in subsequent proceedings;
- Loss of procedural leeway, such as refusal to grant adjournments or extensions.
Moreover, when experts, barristers and instructing solicitors have allocated time and resources to attend, a cancelled mediation wastes not only financial investment but professional goodwill.
Professional Observations
As an expert witness, I attend mediation to support resolution and explain complex technical matters, identify points of agreement and help parties move toward settlement. This mediation’s cancellation meant that this opportunity was lost. Hours of preparation and collaboration were wasted due to one party’s failure to participate in good faith.
And beyond the logistics, something more critical was eroded: trust in the process.
Closing Reflections
Mediation is more than a procedural step — it is a genuine opportunity for parties to regain control of their dispute and reach a practical outcome. That opportunity is only meaningful if all participants engage seriously, with the authority and willingness to resolve.
As professionals, whether lawyers, experts, or advisors, we all share responsibility for upholding the integrity of that process. That begins with showing up, properly.