Effective Use of Civil and Commercial Mediation in Poland: Part 2


by Sylwester Pieckowski

February 2012

Sylwester Pieckowski

(Review the first part of the article here.)

3. Polish Mediation in Civil Matters in Numbers (2006-2010)
Court-annexed mediation in civil matters: categories and number of  disputes assigned by courts to mediation during 2006 - 2010:
* 2006
Civil: 1,448    Commercial : 256 Labour: 33    Family: 270   Juvenile: 326 ALL: 2,333

* 2007
Civil   1,399   Commercial   258     Labour 74   Family 326     Juvenile 366 ALL 2,423

* 2008
Civil 1,455     Commercial 210   Labour  107   Family 427    Juvenile 261 ALL 2,460

* 2009
Civil 1,842     Commercial 540      Labour 252   Family 716       Juvenile 293 ALL 3,643

* 2010
Civil  2,196     Commercial 848    Labour  195   Family 988       Juvenile 337 ALL 4,564

* 2006-2010 (cumulatively)
Civil 8,340   Commercial 2,112 Labour 661 Family 2,727   Juvenile 1,053 ALL 15,423
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4.  Barriers to successful growth of mediation in civil and commercial  matters in Poland
Taking into account the civil mediation statistics being collected by the Ministry of Justice which focus on mediation in court proceedings, the reported activity of mediation centers and institutions that conduct conventional mediations, and the research studies undertaken by the Civic Council on ADR at the Ministry of Justice, it can be  fairly stated that during 2006-2010 the civil mediation has found a safe harbor in Poland.  The fact of successful establishment of the new institution is acknowledged by statistics and public perception, but it’s  rate of acceptance within the society at large  is still quite small in volume. According to Polish ADR experts and regulators, despite its present low numbers, it can be summarized that the prospects for growth of mediation in civil matters in Poland are still cautiously optimistic.  But nobody can rest on laurels today and the sobering picture stemming form the official statistics that confirm the standstill not actual growth, requires from us taking a fresh look and raising new initiatives that will put mediation in Poland back on track. In order to do it successfully, there are outstanding specific tasks that require vigorous undertaking by the  lawmakers, the courts, the mediation institutions, legal professions and the media.   

4.1.   Cognitive barriers
In order to achieve a decisive breakthrough in civil mediation, in its volume and quality, a comprehensive interdisciplinary measures undertaken by ALL interested parties are needed in order to change the picture. On the supply side, the new legislation on financing of civil mediation is urgently needed; the mediation centers - the existing and the new ones - should be focused on massive training and certification of mediators. Next, acceptance and in-depth understanding of mediation by Polish judges is by far the leading premise for successful takeoff and growth of mediation in civil court proceedings. On the demand side, the positive message must reach and convince business leaders, small and big entrepreneurs, and above all - the CONSUMERS that mediation is the first and the best solution for their troubles in getting their disputes resolved in a quick, professional and inexpensive way, before other means like arbitration or litigation are considered. Media acceptance and embrace of mediation as a TOP ISSUE for societal development and a better legal discourse is a key condition which is absolutely mandatory for ultimate success of mediation in Poland. On the policy side, mediation cannot significantly grow without a clear and steady support of it by the state and government bodies. In this context, mediation is to be perceived under the notion of ADR that includes all brands of  institutions and techniques that serve amicable resolution of civil and commercial disputes, to name the two most important: mediation and arbitration.    

4.2.  Regulatory conditions: international treaties, regional and national laws
The present international regulatory framework on mediation in civil and commercial matters is already mature to include the following milestone instruments:
*            UNCITRAL Conciliation Rules (1980)
*            UNCITRAL Model Law on International Commercial Conciliation (2002)
*            EU Council Conclusions on alternative methods of settling disputes under civil and             commercial law (May 2000)
*            Recommendation Rec (2002) 10 of the Committee of Ministers to Member States on             mediation in civil matters
*            EU Green Paper on alternative dispute resolution in civil and commercial matters             (April 2002)
*            EU European Code of Conduct for Mediators (2006)
*            EU Directive 2008/52/EC of May 21, 2008 on certain aspects of mediation in civil             and commercial matters.
The national legislation on mediation in civil and commercial matters is not numerous, and the Polish Law of 2005 appears among leaders such like the United States (U.S. Uniform Mediation Act 2001 and the Austrian Mediation Act (Law on Mediation in Civil Law Matters) 2003.

Why regulate mediation on a national level?
First, the mediation laws make this institution legally effective in terms of preserving parties' vital rights (ex. confidentiality and statute of limitations) and making a mediation settlement enforceable in courts, equally to arbitral awards. 

Second, the mediation laws ensure for mediation its autonomous position and equal constitutional setting in resolving civil matter disputes vis a vis state courts and arbitral tribunals. In this sense, the right to mediate is derived form the fundamental freedom of individual and the freedom of economic activity.

Third, the mediation laws constitute the best marketing tool and educational format addressed to the public, and, especially, entrepreneurs.

4.3.   Institutional conditions in national setting
Establishment of national and regional mediation centers, supported by the government, local communities, business associations and chambers is a must program to make the mediation growth assured in its all dimensions, namely:
-  ongoing training and certification of mediators;
-  setting and guidance of ethical standards and codes for mediators
-  setting standards of mediation proceedings and mediator's conduct
-  procedural guidelines and opinions for courts
- drafting legislation concerning civil mediation and mediator's conduct              
-  maintaining mediators' rosters and submitting them to the courts
-  performing mediation services upon court order and upon free choice of  parties.

At present, we can see a rapid growth of mediation centers and institutions. Without listing all of them, we can group them as follows:
A. The mediation centers attached to the courts of arbitration, ex. the Court of Arbitration and the Polish Chamber of Commerce, the Court of Arbitration at the Polish Confederation of Private Employers Lewiatan.
B. The mediation centers attached to professional associations: the Business Mediation Centre at the Polish Arbitration Association, the Polish Bar Association, the National Council of  Legal Counsels.
C. The mediation centers at law faculty departments of Polish universities, like the Mediation Centre at Warsaw University.
D. Independent mediation institutions of specific tasks and tradition:
-            Polish Mediation Center (Warsaw)
-            Foundation "Partners - Polska"
-            Polish Mediation Association (Zielona Góra)
-            Mediation Center of the Lower Silesia
-            Family Mediators Association
-            Negotiation and Conflict Resolution Center at Warsaw University,             Institute of             Applied Social Sciences.
-            Conflict Clinic (Warsaw).      

4.4.  The Civic Council for Alternative Methods of Conflict and Dispute Resolution at the Minister of Justice (also known under a short name: the Civic Council on ADR)  

The Council was set by the Minister of Justice in 2005 and its 20 members were appointed.
The Council's responsibilities include:
- working out of standards of mediation conduct;
- working out of mediator's code of ethics;
- working out of  draft Law on ADR;
- promotion of ADR within the society,  employees of judicial system,  legal professions and business circles.
During its first term (2005-2008) the Council worked out and adopted the following instruments:
* Standards for mediation and mediation proceedings;
* Standards for mediation and mediation proceedings in criminal matters;
* Standards for training of mediators;
* Assumptions of the pilot project: Mediation after the judgment sentencing for mandatory imprisonment; 
* Draft Ordinance of the Minister of Justice amending Ordinance on mediator's compensation and mediation costs in court-annexed mediations, with opinion;
* Petition to the Minister of Finance to remove mediator's duty to pay VAT tax in mediation cases conducted free of charge;
* Proposals to facilitate and improve mediation proceedings by the civil courts within the existing provisions of law;
* Code of ethics for mediators;
* Pledge to mediation for business organizations and law firms;
* Model mediation training programs for judges in civil, family, commercial and criminal matters.
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* international arbitrator and mediator, advocate at Law Firm Chadbourne & Parke LLP, Warsaw, President of the Polish Arbitration Association, Deputy Director of the Business Mediation Center in Warsaw, I V-President of the Court of Arbitration at the Polish Confederation of Private Employers Lewiatan (2005-2011), V-President of the Civic Council on ADR at the Ministry of Justice (present).

References


  In February 2009, during a joint conference between the Ministry of Economy and the Polish Arbitration Association it was concluded that ADR is underdeveloped in Poland and that specific promotion and marketing programs will be adopted and addressed by the government and the arbitration/mediation community directly to the public, and, specifically, entrepreneurs.

   Decree No. 24/09/PR of April 3, 2009 on appointment of the Civic Council for Alternative Methods of  Conflict and Dispute Resolution at the Minister of  Justice (Second term); See: www.ms.gov.pl.

   The Standards for mediation and mediation proceedings were adopted by the Council on June 26, 2006 and they include following standards, by their headings: :
      -  Standard I:  The mediator  makes sure that  parties' attendance in mediation and their settlement is free and voluntary;
      - Standard II:  The mediator is neutral in relation to underlying dispute;
      -  Standard III: The mediator is impartial;
      -  Standard IV:  The mediator cares for confidentiality of mediation;
      -  Standard V: The mediator accurately informs the parties on the essence and conduct of mediation;
      -  Standard VI: The mediator takes care of  his high professional skills;
      - Standard VII: The mediators collaborates with other specialist for the benefit of mediation proceedings;
      - Standard VIII: Interruption and termination of mediation proceedings;
      -  Standard IX: The mediator ensures proper premises to conduct mediation for the parties;
      - Standard X: The mediator duly informs about his services in a professional, honest and dignified way.

  The Standards for training of mediators were adopted by the Council on October 29, 2007 and they include the following standards, by their headings:
      -  Standard I: Main principles and components of mediation proceeding;
      - Standard II: Psychological mechanisms of  appearance, growth and resolution of conflicts;
      -  Standard III:  Training of practical capabilities  within mediation;
      -  Standard IV:  Knowledge of legal and  organizational aspects of mediation procedures;
      -  Standard V:  Requirements addressed to persons and institutions involved in mediation training;
      -  Standard VI:  Special types of mediation trainings. 

   The Council's proposals to facilitate and improve mediation proceedings by the civil courts within  the existing provisions of law were adopted in January 2008 and they embrace the following main suggestions to be followed in court practice:
       I.   As a rule, the court should refer the parties to mediation at the hearing with the parties present;
       II.  Prior to referring the parties to mediation the court should carefully examine if a specific dispute qualifies for mediation (is fit for mediation);
       III.  The court decision referring the parties to mediation should be specific enough to contain the following data: (i) full data of the parties and their lawyers, (ii) basic information on mediation, its features, objectives and cost, (iii) statement on whether the parties have agreed to mediate, (iv) reasons why the court has referred the parties to mediation;
       IV.  While referring the parties to mediation without the parties present (in camera) the court should included in its decision an express information for the parties of their right to raise objection to mediation within 7 days.
       V.  The court should consider each time if the summons and answer to summons  should be released to mediator, with parties' approval;
       VI.  The court while referring the parties to mediation should release to them the summons and answer to summons respectively;
       VII. The court should  inform the mediator on his appointment only after having passed 7 days during which the parties can disapprove (terminate) mediation;
       VIII. The court while appointing a mediator should take into account the mediators' special profile and skills;
       IX.  (…)
       X.  The court should consider the possibility of appointing two mediators in the most difficult and complex disputes;
       XI. The courts should publicly announce their applicable mediation rules and programs, and display permanent mediators' names in their premises and information leaflets.

The Council has proposed a  model mediation training program for judges in civil, family, commercial and criminal matters based on the following features:
     * Attendees: judges, their deputies, assistants and trainees.
  * Facilitators: experienced mediator (minimum 3-year experience) sitting together with a judge;
  * Techniques: movie, presentation, discussion,  work in subgroups
  * Time:  4 clock hours with intermission
  *  Materials:  verbal or PowerPoint presentation, case studies, sample settlements, mediation videos, literature.



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Biography




Sylwester Pieckowski’s practice focuses on business dispute resolution through negotiation, mediation and arbitration. He has a broad range of international business experience based on more than 20 years of practice in Polish foreign trade and U.S. corporate and business law. Mr. Pieckowski also practices in international public law and trade law, aviation law, products liability, commercial arbitration and alternative business dispute resolution as well as Polish civil and business law.

Chambers Global - The World's Leading Lawyers for Business 2008 "Sylwester Pieckowski is the first port of call for dispute resolution.



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