The courts will generally be in favour of alternative dispute resolution and will often encourage parties to resolve disputes by mediation.
In the recent case of Danske Bank and Stephen Tallant v S.C.  IECA 117, the Court of Appeal considered an appeal where the High Court had refused to order that proceedings be adjourned to facilitate mediation.
In this case substantial sums of money had been borrowed from Danske, the loans being secured on certain commercial properties. In subsequent family law proceedings, the husband was ordered to make maintenance payments to his wife over a six year period, the payments to be secured out of the rental income of the properties. A judgment was secured by Danske against the husband and a receiver was appointed1. The Bank claimed that it was entitled to receive all the rental income and the wife challenged that, saying that she was entitled to the rent until all the maintenance had been paid to her.
The Bank sought to be joined to the family law proceedings and considerable delays occurred in those proceedings. Fresh proceedings were issued to establish the rights of the various parties. The day before an application was due to be heard, the wife, without first having informed the Bank, sought to have the mater referred to mediation. The High Court directed that the wife put her request in writing and directed that if the Bank refused to go to mediation, then the wife could apply to the court for an order adjourning the proceedings to enable the parties to consider mediation.
The Bank refused to consent to mediation and referred to a previous settlement meeting. It suggested that a further settlement meeting would take place before the matter was due back in court. The wife issued a Motion for the day after the proposed settlement meeting, seeking to have the case adjourned to allow for mediation. The Bank argued that the issuing of the Motion caused them to doubt the wife's sincerity as regards mediation. The Bank also took exception to the fact that the wife had obtained an ex-parte order from the High Court, allowing short service of the Motion, without advising the court that a settlement meeting had been arranged.
What the Bank was seeking to do was to have the rental income - which continued to be paid to the wife - protected until a decision was ultimately made as to the parties' entitlements.
Amenability to mediation
The Court of Appeal referred to the landmark decision on...