GENERAL OVERVIEW OF MEDIATIONS IN POLAND
What are common types of Mediations and who are the common parties?
Mediation can be done as a mediation outside of court or within the court proceedings. It is enhanced by the legal and judicial system as an effective way to save time and costs and is being frequently used in the civil, commercial, family and labour disputes.
The parties to the mediation are the parties to the claim (or potential claim), be it a splitting or divorcing couple, parents in argument, co-owners in the process of property division, home owners association claims or a payment dispute.
What are common formats, procedures, and length of sessions, and who typically attends?
Mediation is frequently done just by the parties and the mediator alone, without the parties’ lawyers. Sometimes the co-mediation is used, where two mediators at the same time help parties resolve their dispute and meet with them, which is very much in practice in the case of family matters.
In the traditional in person mediation, the parties will go to the mediator’s office and attend a session, which is usually scheduled for 2 hours. Multiple mediation sessions on different dates are hence not a rarity, when the parties show interest in reaching an agreement.
The parties attend the session jointly and caucus mediation is not a default set up, it is rather used optionally.
All the important mediation guarantees apply: it is voluntary, the neutrality and impartiality of the mediator is a must, the confidentiality of the information exchanged and the mediation talks – all of it is supported by the Polish legislation.
What are general costs and who pays?
The costs of the mediation are typically borne by the parties and are governed by the agreement between the parties and the mediator. The costs cover the mediator’s remuneration and expenditures.
In some exceptional cases, when a mediation within the court proceedings is being done with a party benefiting from free legal aid, the other parties may be required to bear all the costs.
Mediation in the Hague Convention on Child Abduction Cases can also be offered to the parties free of charge.
There are also some mediation centers that do pro bono mediations.
Are online mediations lawful? If so, are there any limitations?
Online mediation is lawful and used frequently due to the coronavirus pandemic more than ever. It is legitimate and can lead to entering into a valid agreement and create rights and obligations on the parties.
Are online mediations accepted and popular by practitioners and parties? If so, what platforms are typically used, from video to e-signatures?
Online mediations are probably not that popular as in-person mediation, but in the times of remote communications they have become very popular for their safety and efficiency, both for the mediators and the parties.
Online mediation is being done via Zoom, Microsoft Teams, or Skype, depending on the tool which is at ease to the mediator and sometimes to the parties too.
The electronic signing, however, is not a popular feature, which can be attributable to the fact that an electronic signature has a special legal definition requiring a special code which many mediators do not possess and do not invest in having. Therefore, after the online mediation is completed, the agreement most probably will be signed in paper form.
MEDIATIONS IN THE LAW
Who can mediate?
A mediator needs to be a natural person, with full legal capacity, enjoying full public rights. A judge in office cannot be a mediator.
A mediator does not have to have any special educational profile nor expertise. However, those inscribed into the List of the Court Appointed Mediators, need to prove they underwent a mediation training. The basic mediation training requires 40 hour of education and ends up with a certificate. For family law matters another 40 hours apply.
What gives mediation agreements authority? Are they enforceable?
Mediation agreements are binding on the parties once signed by the parties and the mediator, and to a certain extent (to the extent they create legal obligation) can be validated by the courts, which will make them enforceable too.
There are of course cases where the mediation agreement itself will not suffice, and some further endeavours will need to be taken by the parties once the mediation agreement is signed. In family law for example, this applies to the division of property, where the parties after reaching an agreement in mediation will still need to go to the notary or to the court to achieve the desired effects in terms of the form of a deed.
How are courts involved in mediations?
Mediation as a dispute resolution method is promoted by the civil procedure, to the extent that any claim brought to the court should contain a statement whether the parties already sought to resolve their dispute outside of court, especially via mediation.
The court can direct the parties to the mediation once the case has its file number in the court, even before the fist hearing – such a decision can be opposed by the parties. However, usually, mediation will take place after the first hearing upon the parties’ mutual consent. The court can appoint a mediator for the parties or they can agree on one for themselves. The time for mediation given by the court can be up to three months, it happens sometimes that this is even prolonged.
A settlement concluded before a mediator, after its approval by a court, has the legal force of a settlement concluded before a court. A settlement concluded before a mediator that has been approved by issuing an enforcement clause is an enforceable title.
When the mediating parties enter into mediation agreement, 75% of the court fee will be returned to the petitioner.
In what types of cases does mediation apply? Are there cases where mediation cannot happen?
Mediation is used extensively in civil, commercial and family disputes, labor law claims as well as criminal offences – whenever it is possible due to the character of the case.
However, social security claims are excluded by law from mediation (this is because the claim is being brought before a court against the public agency, which is the Social Security Agency (ZUS).
LOCAL PRACTICE RULES
Are there rules for when parties do not show?
Usually, but only as per agreement, the mediators charge the parties a fee when they do not turn up without prior notice within a certain time limit.
The Polish Code of civil procedure gives the parties a possibility to consider the costs of mediation as the costs of the entire court case, so when parties do not show, they expose themselves to a possibility of being faced with the necessity to cover the costs of the mediation or even all or part of the costs of the entire proceedings pending before the court.
Any special rules for when mediation is within court proceedings and when pre-judicial or private outside of court?
The mediation will be done the same, the main difference however, will be the costs. When the mediation is being done through the court, the fees as provided by law apply, and they are usually much lower than in case of the outside of court, private mediation.
EVOLUTION & TRENDS
How has mediation, specifically online mediations, evolved in the past several years?
The boost for online mediation has been created by the limitations of travel and personal contact due to the pandemic.
Mediation in general is paving its way slowly and there still can be instances, when parties have not heard what a mediation is nor what opportunities it can bring to them.
How are courts, parties, lawyers, and mediators, adapting to those changes?
Many courts do not see any role of the parties’ representatives (attorneys) in mediation, which is also true about many mediators, who prefer to see the parties in mediation unrepresented.
Online mediation itself encountered a barrier of human limitations when faced with technology, both in mediators and the parties, but it is being domesticated more and more.
What are some mediation trends to watch in this jurisdiction?
Co-mediation in family law matters, usually done by two mediators of different genders. Very little or almost none use of the caucus style mediation. Mediation without lawyers as a preferred form by the courts and by the parties. Paper signing of the mediation agreements.
WHAT ARE THE BENEFITS OF MEDIATION IN YOUR JURISDICTION
-It is quicker, more efficient, flexible and less expensive than the court proceedings. It is not a waste of time within the proceedings, as it usually does not stop the entire process, it is being done
-The court will return 75% of the court fee to the petitioner in case the mediation agreement is concluded within the court proceedings.
-The parties can offer themselves solutions and ways out, which cannot be then used against them in the court battle, as bringing them in is ineffective.
-Mediation can easily be done online and in a language other than Polish – which is impossible in the court, where the proceedings are only in Polish and online hearings are still a rarity.
Natalia Olowska-Czajka is a Warsaw-based Attorney (Adwokat) and Mediator doing international legal work with families around the world. She is a partner at Olowska & Pierre, Inc. and co-founder of InstantMediations.com