Mediation has many advantages, including: speed, cheapness, simplicity, relieving the justice system, and facilitating access to justice. Unfortunately, there are also disadvantages of this form of dispute resolution: subject limitations, less fairness, less protection of the poor, insufficient protection of weaker parties. However, the advantages of this dispute resolution method outweigh its disadvantages.

In the Polish legal system, there are three grounds for conducting mediation: a party’s request for mediation, a mediation agreement and the court’s referral of the parties to mediation.

Mediation is defined as a voluntary, confidential process in which an appropriately trained person (mediator) who is independent and impartial towards the parties, with their consent, helps them deal with the conflict. It helps the parties to determine controversial issues, improve communication between them, develop a solution that can end the disputes, and if they are accepted, leads to the conclusion of an agreement.

There are the following mediation rules:

• the principle of voluntary participation – no one can be forced to participate in mediation, each party may withdraw from participation in mediation at any stage and this cannot be used in proceedings against it;
• principle of confidentiality – the mediator and the parties are obliged to keep secret everything they learn during mediation, except for the exceptions indicated in the law;
• the principle of mediator impartiality – the mediator does not get involved in the conflict, does not evaluate the parties or advise them;
• the principle of respect – the parties should respect each other’s dignity, do not shout, do not use profanity, do not hurt each other with their statements, do not interrupt each other;
• the principle of informality and the principle of privacy mean that mediation meetings are not recorded in any way. If the mediator takes notes for mediation purposes, he is obliged to destroy them at the end of the mediation proceedings. In mediation, the parties and the mediator determine the time and place of the mediation meeting and their frequency. The parties are not limited by rigid rules of procedure;
• the principle of good faith conduct – the parties should present actual circumstances, not manipulate, and tell the truth;
• the principle of the parties’ will to reach an agreement – the aim of mediation is to reach an agreement satisfactory to both parties;
• the principle of conflict autonomy – the dispute „belongs” to the parties and it is they, not the mediator, who decide how it will be resolved. The mediator does not propose any solutions to the parties, does not impose his point of view, does not give advice, does not advise, does not persuade and does not express his own opinion on matters that concern clients.

Even though mediation has existed in the Polish legal system for several years, it still raises concerns among the parties as to how it is carried out, which in turn affects their consent to its conduct.

Currently, parties most often come to mediation as a result of being referred by the court. Within 7 days of serving the party with the court’s decision to refer to mediation, the party may object.

If neither party objects to mediation, the entire mediation procedure begins.

Mediation most often begins with telephone contact with the parties, and if the parties have appointed attorneys, also with their attorneys. It is assumed that the parties should be contacted by telephone within 7 days of receiving the court’s decision to refer to mediation. In a telephone conversation, the mediator presents to the party the purpose of mediation, its basic principles and information about its costs. In a conversation with the party, the mediator may also clarify any doubts regarding the conduct of mediation.

If the mediator does not have the parties’ telephone numbers, he or she contacts them by letter, sending them an invitation to mediation that contains the same information that he or she provides in the telephone conversation. In such a case, the invitation to mediation often includes the date within which it is to be conducted.

The next stage includes a direct meeting, the aim of which is to communicate the parties and conclude a satisfactory agreement. At this stage, the opening part of the meeting should be distinguished, including an opening speech, the purpose of which is to introduce the mediator, discuss the rules of mediation, inform the parties about the costs, present the course of information, obtain consent to mediation and the person of the mediator.

Then comes the part of the parties’ speech, the aim of which is for them to speak freely without interfering in each other’s words, with the aim of ventilating the emotions accompanying the conflict.

The next part of mediation at this stage involves individual conversations with the parties, the aim of which is to test the presented proposals and make them more realistic.

Individual conversations are concluded with the next part, which involves a joint meeting between the mediator and the parties and presenting their mutual proposals.

If the parties agree to their proposals, the next stage begins, including the construction of a settlement – an agreement whose aim is to formulate the provisions of the accepted proposals in such a way that the settlement will be approved by the court. It is constructed by the mediator and sent to the parties for final approval. It should be noted that when the parties are represented by professional attorneys, they supervise the correctness of the settlement prepared by the mediator.

The last part of mediation is the signing of an agreement, the purpose of which is to make the parties’ arrangements binding. It is signed by the mediator and the parties.

The mediation proceedings are documented by preparing a protocol containing the following elements: time and place of the mediation, name and address of both the parties and the mediator, and the result of the mediation. Only one report is prepared from the entire proceedings and signed by the mediator. When an agreement is signed, it is also included in the minutes.

Fulfilling the obligation imposed by law under Art. 18313 of the Code of Civil Procedure, the mediator shall immediately submit a report to the court if the mediation has ended in an agreement. Signing it by the parties is tantamount to consent to applying to the court for approval of the settlement.

See more:https://poradnikpracownika.pl/-na-czem-polega-mediacja-jak-przebiega-procedura-mediacji

Supported by Norway through Norway Grants 2014-2021, in the frame of the Programme “Social Dialogue – Decent Work”.