«Mediation is your conversation with another person about difficult matters in the presence of a mediator – a person who will help to communicate and will make sure that nobody feels lost or injured»
What is mediation in the Polish sense?
In Polish law, there is no legal definition of mediation. However, based on the main purpose of the mediation and opinions of the Polish jurisprudence, mediation is an attempt to bring a mutually satisfactory solution to the conflict, through the voluntary third party negotiation. Such negotiations are facilitated by an impartial and neutral mediator and help the parties reach an agreement. This form of dispute resolution is an alternative to judicial interference.
However, we cannot say that the Polish legislature completely ignored that institute. In particular, mediation is governed, inter alia, by the Code of Civil and Criminal Procedure, the Law of Procedure in Cases Involving Minors and the Law on Costs in Civil Cases. Instruments of subordinate legislation have also been enacted governing a detailed mediation procedure in respect of specific types of cases.
What is interesting? Mediation is a voluntary way of resolving disputes and conflicts and is conducted on the basis of: a mediation agreement (out-of-court mediation) or a decision of the court for a referral to mediation (mediation referred by the court).
Who can become a mediator?
In the matter of the requirements to become a mediator, Polish law is very liberal. For example, if you want to be a mediator in civil cases in Poland you need to be a natural person with full legal capacity, enjoying full civil rights. For fact, the mediator may not be an active judge but this does not apply to retired judges. The Polish law does not define the age, nor the qualification and profession that a mediator should have. Usually, it is enough to have completed training in mediation (but the law does not demand it in a straightforward matter) and be registered in the list of permanent mediators (made by social organizations and universities) to be able to provide mediation on the order of a court.
In practice, more detailed requirements for mediators are determined by the internal regulations of the mediation center and also often taken into account by the courts, which send the matter to be mediated within the so-called judicial mediation, nevertheless this current system is heavily criticized and practice shows that it is necessary to amend the rules in this area in order to ensure high professional qualifications of mediators; especially that nowadays there is no legal guidance on the right and/or duty to use the title of mediator, nor are there any regulated complaint schemes or disciplinary proceedings.
What are the features of the mediation procedure in Poland?
The mediation procedure is used in almost all sectors – in criminal, civil, family, labor, economic disputes, as well as in cases of crimes committed by minors.
As you can see, mediation in Poland has a fairly wide scope. At the same time, mediation is most often used in the field of criminal procedural law. First of all, this is due to the fact that for the first time the mediation procedure was settled precisely in the Criminal Code and the Criminal Procedure Code of Poland. Mediation in the criminal process can be carried out at various stages of the criminal process – both during the preparatory proceedings and directly at the time the court considers the case or at the stage of the enforcement proceedings. Depending on the stage, the prosecutor or the judge can initiate the mediation, except for the parties to the dispute themselves. In the latter case, the parties must voluntarily and knowingly express their consent to participate in the mediation process. Institutions that meet certain requirements (created to carry out tasks in the field of mediation, rehabilitation, protection of state interests, individual interests, human rights and freedoms have the right to conduct mediation in criminal cases in Poland; which have the appropriate organizational and staffing conditions for mediation; included in the judicial register of institutions and persons entitled to mediate), as well as attorneys not younger than 26 years of age, having Polish citizenship, full civil legal capacity, fluent in Polish language, do not have a criminal record, possess the necessary skills and knowledge in the field of psychology, pedagogy, sociology, rehabilitation or law and can vouch for their own duties.
Mediation in civil disputes was introduced into the Polish Civil Procedure Code by the relevant Law from 07.28.2005. The amendments introduced by the Law concerned both the general characteristics of the mediation procedure and the features of such a procedure in family and guardianship cases. The mediation procedure itself in the Code is regulated quite clearly. So, in accordance with Art. 183-1 § 2 of the Civil Procedure Code of Poland, mediation is carried out on the basis of a mediation agreement or a relevant court order, it reviews the case and can direct the parties to the mediation procedure. In the mediation agreement, the parties assume that the existing conflict or conflict that may arise between them in the future will be resolved through mediation. Such an agreement can be concluded both before the start of the trial by the court and during the trial. Mandatory elements of a mediation agreement are the determination of the subject of mediation, as well as the person of the mediator or the method of election of such a person. A decision on the direction of the parties for mediation can be issued only after the start of the trial – at the initiative of the court or with the request of the parties. In the decision, the court must determine the mediator and the time during which the mediation procedure will be carried out.
What is the cost of mediation?
In criminal matters and cases involving minors the parties do not pay the costs of mediation – these are covered from Treasury resources. In other types of cases, as a general rule remuneration is subject to agreement between the mediator and the parties. The mediator may, however, agree to conduct mediation on a pro bono basis.
In civil matters, the costs are borne by the parties. The parties usually pay half the costs each, unless they agree otherwise. In respect of mediation proceedings instigated on the basis of a court decision, the amount of the mediator’s remuneration in non-property disputes is PLN 60 (approximately EUR 15) for the first mediation session and PLN 25 (approximately EUR 6) for each subsequent session. In property cases, the mediator’s remuneration is 1% of the value of the subject-matter of the dispute (not less than PLN 30 (approximately EUR 7.5) and not more than PLN 1 000 (about EUR 250)). The mediator is also entitled to reimbursement of expenses (covering, for example, correspondence and telephone costs and room rental.
What conclusion can be made?
Thus, mediation in Poland is a fairly developed legal institution and one of the most effective alternative methods for resolving disputes (after all, according to the Polish Mediation Center, about 85-90% of the disputes transferred to mediation result in an agreement between the parties to resolve the conflict). But the lack of proper regulation of the mediation procedure, clear qualification requirements for mediators and the presence of other gaps will not contribute to achieving any progress in the field of mediation in Poland. In general, the experience of legal regulation and the practice of mediation in Poland are valuable for Ukraine, but it should be used, taking into account the peculiarities of national legislation.
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