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MEDIATION IN POLAND not. Aneta Wilkowska-Płóciennik The Mediation Centre of Association of Notaries of the Republic of Poland not. Edyta Pietrewicz The Mediation Centre of Chamber of Notaries in Gdańsk
LEGAL FRAMEWORK - Poland was one of the first EU Member States to enact a detailed and complete legislation on mediation in civil and commercial matters, - the Law of 28 July 2005 amended the Civil Procedure Code and introduced mediation as a separate part of the Code (art. 1831 – 18315), entered into force on 10 December 2005, -the Code does not define mediation, but more requirements of conducting mediations are set forth in standards of Social Council on Alternative Dispute and Conflict Resolution set up by Ministry of Justice - all disputes in civil matters that qualify for amicable agreement can be resolved by means of settlement concluded in front of mediator - the Law apply to both facets of mediation in civil matters: a) contractual mediation b) mediation in court proceedings (court-annexed mediation).
RULES OF MEDIATION Voluntariness Confidentiality Impartiality of the mediator Neutrality
WHO MAY SERVE AS A MEDIATOR IN CIVIL CASES (according to the Law) - any person with full legal capacity to make legal representations (except for judge) - no specific requirements as to mediator’s education are foreseen - mediator’s abilities do not rest in mediator knowledge but in his personality - according to standards for Mediators’ Training prepared by the ADR Board of the Minister of Justice, each person who wishes to become a mediator shall participate in at least 40 hours of training, confirmed by a certificate of completion - the associations and public organizations may establish mediation centers and maintain lists (registers) of permanent mediators. This information is to be released to the president of the district court of appropriate jurisdiction -under law of notaries, notaries must also obtain the approval of the Council of the Chamber of Notaries (11 local Chambers and one National Council of Notaries). -in Poland, there are two notarial mediation centres. First was set up by Association of Polish Notaries in 2011 and second – by The Chamber of Notaries in Gdańsk in 2015.
THE PROCEDURE 1) The mediator shall immediately establish the date and place of the mediation session. Holding a mediation session is not required if the parties agree to the conduct of mediation without a mediation session. 2) A protocol (report) is drawn up from the mediation proceedings, which shall specify the place and time of the mediation, as well as the name, surname (name) and addresses of the parties, name, surname and address of the mediator, and finally the result of the mediation. The protocol is to be signed by the mediator. 3) If the parties enter into a settlement before the mediator, such settlement shall be included in or attached to the protocol. The settlement is to be signed by the parties. Any inability to sign the settlement shall be reported by the mediator in the protocol. 4) The mediator shall provide the parties with a copy of the protocol. 5) In case the court refers a given matter to mediation, the mediator shall deliver the protocol to the court reviewing the matter. 6) If the settlement is concluded before the mediator, the court, at a party’s request, shall immediately conduct the proceedings aimed at approving the settlement concluded before the mediator. If the settlement is to be performed through a court enforcement, the court shall approve it by stamping an enforcement seal thereon; otherwise the court approves the settlement by a decision during an in camera session. 7) The court refuses to stamp an enforcement seal or approve the settlement entered into before the mediator, in whole or in part, if the settlement contradicts the law or the principles of social coexistence, or aims at evading the law, or if is incomprehensible or contains contradictions. 8) A settlement concluded before the mediator, once it is approved by the court, has the same legal status as a settlement entered into before the court
THE COST OF MEDIATION - the costs are borne by the parties - the parties usually pay half the costs each, unless they agree otherwise - the amount of the mediator's fee 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 - if the proceedings relate to property, the mediator's fee 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)) NOTE THAT: If a settlement is reached which is the result of mediation, 75% of the court fees will be refunded to the party who brought the matter before the court. In divorce and separation cases, 100% of the fees are reimbursed. In the case of out-of-court mediation, the mediator's fee and reimbursement of their expenses are contractual and the parties agree on them with the mediator before the mediation begins. The parties cannot be exempt from bearing the mediator's costs even if they are exempt from paying the court fees. The mediator in both types of mediation (court and out-of-court) may waive their fee.
LIMITATIONS This method for dispute resolution is underused in Poland e. g. (1) The matter of fixing the amount of maintenance year Settlement/no settlement (mediation) The total number of cases in the court proceedings 2012 94/160 87. 250 2013 98/184 79. 254 2014 98/111 72. 374
e. g. (2) The way of carrying out of parental authority 2012 Settlement/no settlement (mediation) 24/42 The total number of cases in the court proceedings 41. 269 2013 46/52 44. 354 2014 40/47 42. 821
CONCLUSION (1) ü the ADR methods in Poland do not meet the goal of reducing the workload of courts ü settlements drawn up by mediators non-lawyers are often not suitable for approval by the court and this is one of the main reasons deterring judges from the referral of cases to mediation ü the mediation as a profession is not profitable ü the procedure regarding to relation mediator-court is rather time consuming ü the contractual mediation is rather rare
CONCLUSION (2) Polish mediation regulation - code of civil proceedings is formally comply with Directive 2008/52/ED. Poland has implemented the laws, regulations, and administrative provisions necessary to comply with this Directive before 21 May 2011. Nevertheless, work was undertaken to change polish law mediation. There is project of an amendment of the Code – the important change is that courts will be obliged to invite parties to mediation in all cases where a settlement is acceptable.