Mediation is one of the methods of resolving disputes which is gaining importance in the Polish legal system. Regulated by the Civil Procedure Code, mediation aims to enable parties to reach agreement in a less formal, faster, and more flexible way than a standard court procedure. Mediation may be used in both civil cases, including labour law cases, and in business cases.

Voluntary nature of mediation 
Mediation is fully voluntary, therefore neither party can be obliged to take part in it. It is carried out on the basis of a mediation agreement or a decision of the court referring the parties for mediation (in practice the latter is by far the most common). In a mediation agreement the parties determine in particular the object of mediation, the mediator or the way of choosing the mediator.

The mediator does not take decisions for the parties, but supports them in seeking compromise, which is one of the key differences compared to a court procedure.

When can mediation be used?
Mediation can be carried out both before the commencement of the proceedings and during them. The parties to the dispute may themselves wish to participate in it or the court may refer them to mediation, if it considers that such a solution may produce a favourable outcome. When referring the parties to mediation, the court sets the duration of the mediation to a period of three months. At a unanimous request of the parties or for other important reasons this period may be extended, if it leads to an amicable settlement of the dispute. In practice we have sometimes concluded settlements after mediations lasting many months, the duration of which has been extended several times by the courts.

What is the role of the mediator?
Mediation is carried out by a third party (a mediator) who should be fully impartial. The mediator uses various methods aiming for an amicable settlement of the dispute, including by supporting the parties in formulating settlement proposals or, at the unanimous request of the parties, may indicate ways of settling the dispute which are not binding for the parties. Therefore, the mediator does not make decisions for the parties, but supports them in seeking compromise which is one of the key differences compared to a court procedure (in a court trial the court passes a judgment deciding about the right of one of the parties).

Parts of mediation 
The following stages can be distinguish in mediation:

1. The preliminary meeting – the mediator explains his or her role and the parties have the opportunity to present their position and any potential expectations.
2. Specifying the problem – the parties jointly identify the object of the dispute.
3. Individual talks – the mediator may hold individual meetings with each party in order to discuss their positions and understand the perspective of the mediation participants.
4. Seeking solutions – with the support of the mediator, the parties start suggesting solutions to end the conflict.
5. Negotiations – the parties negotiate the conditions of a potential amicable settlement agreement.
6. Entering a settlement agreement – once a consensus has been reached, the mediator helps the parties formalise the arrangements in the form of a settlement agreement.
7. Concluding the mediation – a protocol of mediation is made in which the place and date of mediation is indicated as well as the names and addresses of the parties, the name and address of the mediator, and the result of mediation. If the parties did not enter a  settlement agreement, they may decide about further steps, e.g. having a court trial.

In case of mediation carried out on the basis of a mediation agreement, a party may apply to the court to approve the settlement agreement reached in the course of mediation. If the court has referred the case to mediation, the mediator always submits the report and the settlement agreement to the court which tried the case. The court then approves the settlement agreement, unless it finds the settlement agreement inadmissible (which is very rare in practice).

If the settlement agreement is to be performed by way of enforcement, the court approves it by granting an execution clause; otherwise the court approves the settlement agreement by order. The court will refuse to grant an execution clause or to approve the settlement agreement in whole or in part, if the settlement agreement is contrary to the law or the principles of social coexistence or if it aims to circumvent the law, as well as if it is incomprehensible or contains contradictions.

What is the nature of a mediation settlement agreement?
The settlement agreement entered into before a mediator, after it has been approved by the court, has the legal validity of a settlement made before the court. A settlement agreement made before a mediator which was approved by grating it an execution clause is an enforcement order. The implementation of such settlement agreement may be enforced in enforcement proceedings.

Advantages of mediation
Mediation has many advantages. The most important of them include:

1. Speed – usually the mediation process is much shorter than a court trial.
2. Cost – as a rule mediation is less expensive than the trial, therefore it allows the parties to avoid costs related to court proceedings.
3. Agreeing the outcome – the parties jointly work out the final solution and the conditions of the settlement agreement, whereas in a court dispute the final outcome always depends on the assessment made by the judge (the outcome could thus be different than the conditions of the settlement agreement following mediation).
4. Limiting the participation of third parties – mediation is not attended by witnesses and expert witnesses.
5. Confidentiality – the course of mediation is confidential, while court hearings as a rule are open to the public.

Mediation is not free, but costs of mediation are much lower than the costs of a court trial. In cases for property rights the fee of the mediator is 1% of the value of the object of the dispute, no less however than PLN 150 and no more than PLN 2,000 for the whole mediation procedure. Moreover, the mediator is entitled to reimbursement of expenses (to a limited amount). If the parties do not agree otherwise, they cover the mediations costs fifty-fifty.

In our opinion when conducting mediation in employment cases one should strive to bring all potential disputes between the parties to an end. Entering into a settlement agreement which covers for example only the claim for overtime may lead to the employee obtaining funds to pursue other claims. This would not be in the interest of any employer. Moreover, it is worth introducing the confidentiality of the dispute and the settlement agreement, a ban on public statements about the former employer, and provisions which will penalise an infringement of the settlement agreement by the former employee. 

Find more in the PRO HR Year Book 2024.