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               LEGAL BASIS OF MEDIATION    

Legal basis of mediation in Poland

At the very beginning mediation was applied to penal cases and collective disputes (under the labor law). The introduction of mediation to civil cases, according to the amendment of July 28th 2005 - Code of Civil procedure and some other laws (Journal of Laws 172, item 1438) was a breakthrough in the development of out-of-court methods of civil dispute resolution.

1. 1. Mediation in penal law

Legal basis:

Articles 53, 54, 60 and 66 of the Code of Penal Proceedings (Journal of Laws No 88, item 553 as amended ).
Articles 320, 339, 489, 492, 493 and 619 of the Code of Penal Proceedings (Journal of Laws No 89, item 555 as amended ).

Victim-offender mediation was introduced to the Code of Penal Proceedings in 1997.

A case can be referred to mediation by:

  • a prosecutor, on his/her own initiative or based on a motion by the parties at the stage of preparatory proceedings,
  • the court, at the stage of the court proceedings, but before the reading of the indictment.

2. Mediation in juvenile offenders' cases

Legal basis:

Disposition of the Minister of Justice of May 18th 2001 on mediation in juvenile cases (Journal of Laws No 56, item 591).

A family and juvenile court judge can refer any case to mediation provided that both the victim and the offender consent to mediation.

3. Mediation in collective disputes

Legal basis:

Art. 184 of the Code f civil procedure
Articles 244 and the following of the law of June 26th 1974 - Labor Code (Journal of Laws of 1998 No 21, item 94 as amended )
Articles from 10 to 14 of the Law of May 23rd 1991 on collective dispute resolution (Journal of Laws of June 26th 1991 No 55, item 236 as amended )

Collective dispute is a dispute between the employees and the employer (or the employers) regarding working conditions, wages, insurance benefits, as well as trade union rights and freedom.
There can be no collective dispute regarding individual employees' rights that can be sued for.
The parties are represented by their organizations: trade unions and employers' organizations.
The law mentioned above defines the steps of a collective dispute resolution, negotiations being the first step. In case the negotiations fail, mediation is the next. Mediation is compulsory. Failure to settle the dispute by mediation gives the trade unions the right to go on strike.

4. Mediation in civil cases

Introduced according to the law of July 28th 2005 amending the law - the Code of civil procedure and some other laws, mediation applies to all civil cases (commercial, family, labor).

Legal basis:

Articles 1831 - 18315 of the Law of November 17th 1964 - Code of civil procedure (Journal of Laws No 43, item 296 as amended ) The above articles govern the issues: legal basis of mediation, requirements regarding the mediator, impartiality and confidentiality of the mediation procedure, mediators' remuneration, requirements regarding the contents of an application for mediation, conditions in which courts can refer a case to mediation, description of mediation procedure.

Most important provisions regarding mediation.

  • Mediation is voluntary Mediation procedure is set in motion based on a mediation contract or court's decision referring a case to mediation. Mediation takes place before the institution of the proceedings, but if the parties agree to go to mediation, mediation can take place also in the course of proceedings.
  • Rule of impartiality and confidentiality of the mediation procedure.
  • Mediator's remuneration are set in special regulations; mediation expenses are split up by the parties.

In the event of a case being referred to mediation by a court, the mediator's remuneration is governed by the Disposition of the Minister of Justice of November 30th 2005 on mediator's remuneration and mediator's refundable expenses in civil proceedings (Journal of Laws No 239, item 2018).

Mediation can also be used as an out-of-court dispute resolution method. In such a case it is the mediator who defines, with the parties to the dispute, the cost of mediation.

  • The mediator draws up a mediation report in which he / she describes the outcome of the mediation (this piece of information is limited to whether there was a settlement or these was no settlement). In the event that the parties settle, the settlement should be approved by the court. Settlement reached before a mediator has the legal force of a settlement reached before the judge. The court approves an enforceable settlement by putting an enforcement clause .

5. Mediation in family cases

Legal basis:

Articles 10 and 184 of the Code of civil procedure.

The judge should strive for a settlement at any stage of the proceedings provided that a settlement is permitted in a specific case. Should the case permit a settlement, the parties can settle before a mediator. If the parties settle under article 184 of the Code of civil procedure, they can apply to the court for approval. In the course of proceedings the parties can settle before the judge. Such a settlement has the legal force of a court decision with enforceable title.

6. Mediation in divorce cases

Legal basis:

Under the aforementioned amendment to the Code of civil procedure of 2005 conciliatory sessions were replaced with a voluntary mediation (articles 436 and 4452 of the Code of civil procedure).
The amended law provides that a couple who have applied for divorce or separation can be referred to a mediator by the court or can apply for mediation on their own initiative.

In what can mediation be helpful?

  • A mediator can help the parties reach an agreements as regards the future of their marriage, should they decide to remain married;
  • A mediator can help the parties define the divorce conditions, such as the kind of divorce they apply for (no-fault divorce, divorce by mutual consent or a divorce in which the petitioner must show the other party's fault), alimony, child custody and division of property.

A divorce or separation case can be referred to mediation at any stage. Mediation is voluntary by all which means that there is no obligation to mediate; the parties can also withdraw in the course of mediation.

7. Mediation in commercial and business cases

Mediation procedure is carried out as provided for in the Mediation Centers' regulations.

Business mediation is voluntary. It is an efficient alternative for lengthy court proceedings. Settlement reached before a mediator can be submitted to the court for approval. As in all civil cases, the parties can also apply for the enforcement clause.

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