Entrepreneurs cooperate with each other for economic purposes, but it happens that their interests turn out to be contradictory. Therefore, conflicts between contractors are inevitable. In order to assert his rights in court, the entrepreneur is afraid that the litigation proceedings will be lengthy and its costs high. Not without significance is also the issue of image and the possibility of further cooperation. Meanwhile, the legislator provided for the possibility of resolving the conflict through mediation. Mediation is about resolving conflicts based on dialogue, and it is much faster and cheaper.

Mediation is one of the voluntary ways of resolving conflicts. Entities decide to attempt mediation when their aim is not only to obtain a favorable solution for them, but above all to clarify contentious issues and establish an agreement. It should be emphasized that joining mediation does not involve the obligation to conclude a settlement. Nor does it preclude a party’s right to assert his rights before a court. Mediation takes place with the consent of both parties, and the settlement reached in the course of mediation is the result of a consensus reached. Currently, the plaintiff is obliged to indicate in the statement of claim whether the parties to the dispute have previously attempted mediation.

Mediation may resolve disputes concerning cases where a settlement is permissible. The subject of a settlement may only be a civil case for which legal proceedings are admissible. In addition, the subject matter of the settlement may not exceed the limit of dispositive parties. This means that it is not possible to settle a case that the parties cannot decide.

In particular, no settlement may be concluded:

• if the case is not a matter of judicial recourse;
• if the case is excluded from international jurisdiction, and
• in proceedings in the field of social insurance.

Disputed counterparties may decide to mediate before or during the trial. They may also be referred to mediation by the court.

Mediation is initiated on the basis of a previously concluded mediation agreement or at the request of one of the parties addressed to the mediator, after the other party has agreed to mediation or on the basis of a court decision to refer the parties to mediation.

The basic principles of mediation are:

• voluntary – mediation takes place with the consent of the parties, moreover, they have the right to withdraw from mediation at any stage;
• impartiality – the mediator should maintain impartiality when conducting mediation;
• confidentiality – the mediation process is confidential. According to Article 259(1) of the CPC, a mediator may not be a witness as to facts of which he has become aware in connection with the conduct of mediation, unless the parties release him from the obligation to maintain the secrecy of mediation. If no settlement is reached, the parties may not refer to statements and proposals made before the mediator during further proceedings.

It should be emphasized that pursuant to Article 123 § 1 point 3 of the Civil Code, the initiation of mediation interrupts the limitation period for the claim. It should be pointed out that the limitation period runs again after each interruption. However, if the limitation period is interrupted by an act in proceedings before a court or other body appointed to hear cases or enforce claims of a given type, either before an arbitration court or by initiating mediation, the limitation period does not run again until the proceedings are concluded. This means that the limitation period should be counted from the date of completion of the mediation. If it ended with a settlement, the claim stated in it expires after ten years, even if the limitation period for claims of this type was shorter. If the claim thus established includes periodic benefits, the claim for periodic payment due in the future is time-barred for three years.

The parties to the dispute decide for themselves how long they will conduct out-of-court mediation. At any time, any of its participants can interrupt it. Usually, the duration of out-of-court mediation does not exceed a month. Practice shows that the parties manage to reach a settlement within 3-4 mediation sessions scheduled every few days. However, the duration of judicial mediation is determined by the procedure. Pursuant to Article 18310 § 1 of the Code of Civil Proceedings, when referring the parties to mediation, the court sets its duration at up to three months. At the joint request of the parties or for other important reasons, the time limit for mediation may be extended if this is conducive to an amicable settlement of the case. The duration of mediation is not included in the duration of court proceedings.

Pursuant to Article 18314 § 1 of the Code of Civil Proceedings, if a settlement has been concluded before a mediator, the court, at the request of a party, immediately conducts proceedings to approve the agreement concluded before the mediator. Under Paragraph 2 of that provision, if the agreement is enforceable, the court approves it by affixing an enforcement clause; Otherwise, the court approves the settlement by decision in closed session.

It follows that, first of all, the court assesses the agreement submitted to it in terms of whether it contains enforceable content. If the agreement fulfils this condition, it is approved by affixing an enforcement clause or, failing that, by issuing a decision approving it.

The court then examines the content of the settlement in terms of its legality. Pursuant to Article 18314 § 3 of the Code of Civil Procedure, the court refuses to issue an enforcement clause or approve a settlement concluded before a mediator, in whole or in part, if the agreement:

• is contrary to the law or the principles of social coexistence;
• aims to circumvent the law,
• is incomprehensible or contradictory.

As emphasized in the case law, the list of grounds preventing the approval of a settlement concluded before a mediator is exhaustive and does not subject to a broad interpretation. The review of the admissibility of a settlement concluded before a mediator cannot consist in a substantive examination of the case (order of the Court of Appeal in Poznań of 14 January 2014, I ACz 2163/13).

Under Article 18315(1) of the Code of Civil Procedure, a settlement concluded before a mediator, after its approval by the court, has the legal force of a settlement concluded before a court. An agreement concluded before a mediator, which has been approved by a declaration of enforceability, is an enforceable title. This means that on its basis the bailiff can conduct enforcement, as in the case of a court judgment.

§ 2 of the aforementioned provision indicates that it does not prejudice the provisions on a specific form of legal transaction.

This means that although a settlement concluded before a mediator has the legal force of a settlement concluded before a court, there is a difference between them in the application of the provisions on a special form of legal transaction. Only a settlement concluded before a court has the same force as notarial deeds. A settlement concluded before a mediator does not have this value.

Source:  https://poradnikprzedsiebiorcy.pl/-czym-jest-mediacja-i-w-jakich-przypadkach-nalezy-ja-zastosowac

Projekt otrzymał dofinansowanie z Norwegii poprzez Fundusze Norweskie 2014-2021, w ramach programu „Dialog społeczny – godna praca”.