Commercial mediation in Poland
Mediation is voluntary but can be suggested either by the courts or a party to the dispute. The court is bound to evaluate whether a case should be subject to mediation before the first session in the case. There are no adverse costs consequences for failing to mediate, unless a party refuses to participate in a mediation to which it had previously agreed. Mediations are confidential. Settlement agreements are valid enforcement orders and so may be enforced in the same way as a judgment, subject to the requirement for the agreement to first be approved by the court. The court may refuse to approve a settlement agreement in certain circumstances, including if it is contradictory or ambiguous.
What is the status of mediation in this jurisdiction?
Mediation is a recognised form of ADR in Poland and is regulated by amendments introduced into the Polish Civil Procedure Code in 2005. Provisions regarding mediation are contained in articles 183.1 – 183.15 of the Code, while articles 184 – 186 regulate court settlements.
On 1 January 2016 Poland implemented the ADR Directive which introduced major revisions to the mediation rules. Whilst the Polish Code of Civil Procedure underwent extensive reform in 2019, these revisions had little impact on mediation.
How is a mediation conducted?
A mediator may be appointed by the parties or by a mediation institution where this is provided for in the mediation agreement, or by the court referring a case to mediation, provided that the parties agree with both the referral to mediation and the appointment of the mediator. There is no requirement for the parties to be legally represented. However, in commercial disputes lawyers usually attend the mediation session to assist their client in the presentation of their case. There are no set procedural rules for mediation. Mediation may begin with a plenary session where both parties present their case, followed by multiple sessions with the mediator who works with each party separately, followed by a closing plenary session ending possibly with an agreed settlement. However, in practice mediation is also conducted by mediators in one long plenary session, perhaps adjourned from time to time for separate consultations with the mediator/lawyer assisting the party.
The choice of the method is largely dependent on the experience of the mediator and will of the parties.
Is there any obligation on litigants to mediate?
Does the court have powers to support a mediation?
Before the first session in the case, the court is bound to evaluate whether the case should be subject to mediation. The court may request the appearance of the parties in person at this closed hearing, if it deems that it is necessary to hear the parties’ submissions to assess whether it is reasonable to refer the case to mediation. The court is also authorised to call upon the parties to take part in an information meeting regarding ADR in general, and mediation in particular.
The court may refer a case to mediation, either at its own discretion or at a party’s request for mediation, at any point during the proceedings. The court may refer a case to mediation multiple times in the course of proceedings. The parties are not obliged to agree to mediate but have seven days from the court decision in that respect to oppose mediation. After that, the parties will be deemed to have agreed to mediation.
In its order referring the dispute to mediation, the court specifies a maximum time limit of three months for conducting the mediation. This time limit may only be extended upon the joint request of the parties. Once the time limit has elapsed, the court will schedule a court hearing.
The inclination of individual courts to refer disputes to mediation without a prior request from a party to the dispute may still vary.
Does failure to mediate attract adverse cost consequences?
Are mediations confidential?
Yes. The duty of confidentiality stems from the parties’ agreement as well as being regulated by law. The whole mediation process is confidential, and the mediator is bound to keep confidential all that he has learned during the mediation. Parties may not attempt to call or rely on in court, declarations or proposals made by other parties during the mediation; such evidence will be ineffective and will not be considered by the court.
How are settlement agreements enforced?
Settlement agreements are valid enforcement orders and may be subject to enforcement in the same way as the court’s judgments or settlements entered into in the course of litigation. To obtain such status, a settlement agreement reached in the course of a mediation will first need to be approved by the court. The court may refuse to affirm a settlement agreement in part or in whole if it considers that it contradicts or circumvents the law, is contrary to fairness principles or is self-contradictory or ambiguous. Approval of a settlement agreement by the court concludes the proceedings.
Is there a system of accreditation and/or regulatory body for mediators?
There is no state-approved system of accreditation for mediators. However, local mediation institutions conduct numerous training events and have their own accreditation criteria. They also hold lists of accredited mediators, which are sent to Regional Courts. Courts referring cases to mediation shall appoint mediators with adequate expertise necessary to conduct a mediation in cases of a given type, including those entered on the aforementioned lists.
