1. Polish Mediation Law of 2005
1.1. Poland was one of the first EU Member States to enact a detailed and complete legislation on mediation in civil and commercial matters by the Law of 28 July 2005 that amended the Civil Procedure Code and introduced mediation as a separate part of the Code. (“Polish Mediation Law”). The Law entered into force on 10 December 2005.
The Law introduces mediation as a new institution into the Polish civil procedure, thus, it creates an alternative way of resolving disputes in civil matters and in addition to the traditional way of dispute adjudication by state courts. Mediation should result in fast resolution of a number of disputes, in a way which is most convenient and satisfactory to the parties – within a settlement. The drafters have intended to make mediation as much attractive for the parties involved as practicable in order to make mediation reality. To this end, the provisions of the Law were intended simple and straight. Mediation should facilitate dispute resolution in civil matters, but at the same time, it requires that legitimate rights of parties participating in the process are duly protected.
Having in mind such objectives it was stated that all disputes in civil matters that qualify for amicable agreement can be resolved by means of settlement concluded in front of mediator. Such settlement having been confirmed by court has legal status equal to court settlement. In addition, by embarking on mediation the running of statutes of limitation is interrupted, and if mediation is proved unsuccessful, it runs anew.
The Law provides for comprehensive regulation of both facets of mediation in civil matters: (i) conventional or contractual mediation and (ii) mediation in court proceedings (court-annexed mediation).
Financial incentives were also introduced by the Law in order to enhance parties to agreements and disputes to use mediation steadily and frequently. In case mediation settlement is reached within court proceedings the plaintiff will recover ¾ of the court fee already paid.
1.2. As a rule mediation is a voluntary instrument of law conducted on the basis of:
- earlier agreement to mediate future disputes between the parties (contractual mediation), or
- ad hoc agreement to mediate the existing dispute between the parties (contractual mediation), or
- the court has referred the parties to mediation (court-annexed mediation), provided either party can raise objection against such court decision within seven days, and such objection shall stop mediation. This constitutes evidence that ultimately these are the parties who decide upon whether to embark on mediation or not.
The mediation procedure is regulated in Articles 18311, 18312, 18313, 18314 and 18315 of the Law as follows:
* 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.
* 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.
* 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.
* The mediator shall provide the parties with a copy of the protocol.
* In case the court refers a given matter to mediation, the mediator shall deliver the protocol to the court reviewing the matter.
* 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 (In Polish: klazula wykonalnosci) thereon; otherwise the court approves the settlement by a decision during an in camera session.
* 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.
* 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.
2. EU Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters of May 21, 2008; critical assessment in light of the Green Paper of 2002 and the Polish Law of 2005
The Directive embodies fruits of the Commission’s multi-year research it conducted in the general sphere of ways and means that lead to better performance of justice in resolving civil disputes in the Member States. (See: Green Paper on ADR of 2002). The Commission has made detailed evaluation of actual legislation and practice of Member States concerning conventional mediation and mediation in court proceedings and concluded that having regard to the reactions to the Green Paper of 2002 and current positive developments at national level, there is no need for EU to regulate in the proposed Directive the mediation process or the appointment or accreditation of mediators. In turn, there is pressing need of regulation by directive, first, in the area of ensuring sound relationship between mediation and judicial proceedings, by establishing minimum common rules in the Community; second, by providing tools for the courts to actively promote the use of mediation, without “… nevertheless making mediation compulsory or subject to specific sanctions”.
Within Explanatory Memorandum the Commission has defined the tasks and objectives of the Directive as follows:
- there is need of ensuring better access to justice for individuals and businesses in Member States by supplementing their national legal systems with amicable, non-adjudicative mechanisms, first of all – mediation;
- implementation of mediation in court proceedings should be coupled with relevant safeguards of due process and professional conduct, including clear rules for mutual relationship between mediation and court proceeding (statutes of limitation, constitutional right to seek justice in court);
- the Directive is perceived as promotion tool, encouraging civil mediation, as legitimate mechanism for resolution of civil disputes a swift, inexpensive and professional manner;
- mediation is expected to offload pressure on the court system and the plague of congestion of cases and long delays in case-handling, affecting virtually all Member States;
- widespread use of mediation in resolving civil disputes will bring measurable economic benefits to parties concerned (reduced transactional cost) and the society at large; it will conclusively ease social tensions by building new legal culture in Member States and among them based on friendship, reasoned conversation and compromise.
On October 22, 2004, the European Commission adopted a Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters to be implemented by all Member States (except Denmark) by September 1, 2007 at the latest.
Finally, after a long and complex discussions in the Commission and among the Member States, on May 21, 2008 the European Parliament and the Council arrived at the consensus and adopted the Directive 2008/52/EC, to take its effect as of June 13, 2008.
The Directive is viewed as a half-successful regulation because - in a response to opposition raised by certain States ex. Austria - while it retains all the essential components of the 2004 Draft, it reduces its scope to cross-border disputes only, thus, reducing its universal application and general impact on national legislations.
In the Preambles the Directive provides as follows:
"(8) The provisions of this Directive should apply to mediation in cross-border disputes, but nothing should prevent Member States from applying such provisions also to internal mediation process"
General assessment of the Polish Mediation Law vis a vis the Directive
The Law and the Directive voice the same message as to need of decisive upgrading of the existing court-based dispute resolution system in civil matters by mediation, which should bring a substantial reduction of tension is national court systems and societies at large, dramatically improve general legal culture throughout the Member States and change civic discourse based more on reasoned conversation and settlement and less on adjudicative power of state court systems.
Scope of regulation of the Law and the Directive is similar but significantly different: The Law covers all civil and commercial matters with one exception contained in the Law to say that it applies to all civil matters that can regulated by settlement. In turn, the Directive, unlike the Draft Directive of 2004, directly applies to mediation in cross-border disputes only.
In accordance with principal of subsidiarity and proportionality, the Directive is focused rather on mediation in the court proceedings context leaving to Member States, individuals and business do decide how the mediation proper is regulated i.e. the standards of mediation proceedings, certification and selection of mediators, mediators’ training and lists of qualified mediators.
The Polish Mediation Law is broader in its scope: it regulates mediation in the court proceedings context but it also generally approaches the issues of mediation proper i.e. the mediation agreement, selection of mediator, confidentiality, mediation proceedings.
Definition of Civil mediation
The Law does not define civil mediation, it rather describes it. I turn, the Directive defines mediation in Article 3. It can be summarized that the Law and the Directive contemplate and regulate a similar “classic” model of mediation, being viewed as a supportive and supplemental in relation to state court proceedings, with the participation of a neutral and independent from the parties person – a mediator, who assists the parties or rather facilitates their discourse aimed at getting into a mutually acceptable settlement. The both authorities do not regulate or accept other known and accepted forms of ADR like: mini-trial, med-arb and other. In this sense, this definition of mediation can be rather connected with the facilitative model than the evaluative type.
Referral to Mediation
The Directive (Article 5) says that the court can invite parties to mediation but it cannot mandate it. At the same time it is stated (Article 5.2) that the Directive does not prejudice national legislations to make mediation compulsory or subject to incentives or sanctions.
The Polish Law goes farther than the Directive and stipulates that the state court can once mandate the parties to undertake mediation, even though they have not made a prior agreement to mediate. The voluntary character of mediation is ensured by the parties' right to reject a court referral to mediation made without parties' prior consent or knowledge.
The Directive (Article 4) calls upon Member States to undertake concrete steps aimed at establishment and improvement of good standards (code of ethics) for mediators and organizations offering mediation services. Secondly, the Directive sees necessity of building quality building and supervision mechanisms to protect and promote training of mediators, in order to generally lift the professional level of mediation up, and, specifically, to improve mediation offer for the interested parties.
It should be admitted that the Law is less than satisfactory in this scope. It is expressly stated by the Law that the are no specific qualitative criteria or professional parameters the mediator must meet. In turn, it says that "Any person with full legal capacity to make legal representations can perform as mediator." Moreover, in the explanatory memorandum submitted by the government it is expressly said that "Mediator's abilities do not rest in mediator knowledge but in his personality. Therefore, in order to make easier for the parties to undertake mediation no specific requirements as to mediator's education are foreseen."
It seems that this patent defect of the Law should be cured by adequate, active practice of the state courts and their presidents, who will create lists of registered mediators, and to include also lists of permanent mediation centers. A good example is provided by U.S. courts and their mediation programs.
Enforcement of settlement agreements
According to the Law the settlement agreement constitutes an execution title, equal to arbitral award; and after obtaining a court acceptance the settlement has a legal value of settlement concluded before the court. The Directive contains similar provisions by saying to this end that the Member States are required to assure in their legislation that mediation settlements are enforceable.
Protection of confidentiality for mediator and other participants of the mediation proceedings as to their exposure as witnesses in civil proceedings is one of the key provisions of the Law and the Directive. These safeguards play fundamental role in the process making mediation practically safe and available to the parties of civil dispute. Lack of these provisions in the past effectively erased any temptation to try mediation as effective and legitimate dispute resolution tool.
The provisions of the Law are clear but rather short; they require mediator to keep confidentiality of all facts he learned during mediation and they protect mediator from testifying as witness in civil proceedings. The Law does not contain similar provisions for the parties and other participants of mediation process. It is being proposed by the ADR community in Poland that the Law which should be corrected by subsequent amendment.
The Directive in its Article 7 is much more complex and detailed; it prohibits mediators and any person involved in the administering of mediation services to testify or give evidence in civil judicial proceedings except:
- giving information necessary for the purposes of implementation or enforcement of a mediation settlement; this should include interpretation of a settlement and its validity;
- for overriding considerations of public policy of the Member State ex. safety of children, jeopardy to a person.
The Polish Law has envisaged a single, different exception to the confidentiality obligation to say that the confidentiality may be lifted if the mediator and the parties so agree.
The Directive's confidentiality provisions are based on the UNCITRAL Model Law on International Commercial Conciliation of 2002 and they go much farther than the Polish Law. They, indeed, are much closer to U.S. Uniform Mediation Act. There is still, however, a big gap between the Directive and the Uniform Mediation Act since the former applies confidentiality to mediators and other persons administering mediation process only and the latter imposes confidentiality expressly on the parties in the first place.
Interruption of statutes of limitation
According to the Law (Article 123 § 1 of the Civil Code) "The running of the period of limitation shall be interrupted: (…) 3) by commencement of mediation.".
In turn, the Directive (Article 8) is very modest in this area and only provides that:
"1. Member States shall ensure that parties who choose mediation in an attempt to settle a dispute are not subsequently prevented from initiating judicial proceedings or arbitration in relation to that dispute by the expiry of limitation or prescription periods during the mediation process."
The Directive in Article 12 obligates the Member States to implement the Directive until May 21, 2011,with the exception of Article 10 (Information on competent courts and authorities), for which the date of compliance shall be November 21, 2010.By enacting the Law of 2005, Poland's regulation on civil mediation, in terms of its timing and content, has pre-empted and exceeded the Directive, in its almost all main provisions.
The Polish Mediation Law in a descriptive way has adopted a typical form of mediation being rather a facilitative model of mediation at which mediator acts as a neutral that only helps the parties in conducting their negotiations. It seems that this careful approach is justified by Poland's lack of prior experience in dealing with mediation in civil matters.
See: U.S. District Court Northern District of Illinois: MEDIATION PROGRAM FOR THE WESTERN DIVISION "It is the desire of the court to provide all parties with an opportunity for resolution of their dispute which would occur potentially early in the litigation process in order to keep transactional cost costs at a reasonable level."