By Pieckowski, Sylwester
Dispute Resolution Journal , Vol. 61, No. 3
Eastern Europe cannot be ignored when it comes to alternative dispute resolution, including mediation. Poland is one of the first EU Member States, the first in Eastern Europe, to enact detailed legislation on mediation in civil and commercial cases. This article discusses the provisions of the new Polish law in light of the requirements of the Proposed European Directive on Mediation.
On Oct. 22, 2004, the European Commission (EU) issued a Proposed Directive on Mediation for civil and commercial matters to be implemented by all Member States (except Denmark) by Sept. 1, 2007, at the latest. On June 9, 2005, the European Economic and Social Committee delivered its supporting opinion and on Dec. 2, 2005, the EU Council of Ministers "reached a common understanding on the text of a draft Directive on mediation in civil and commercial matters, subject to the definition of cross-border crisis and the application of the principle of subsidiarity."1 The European Parliament has not yet delivered its opinion at first reading.2 Poland is one of the first EU Member States to enact detailed legislation on mediation in civil and commercial cases. The Law of July 28, 2005 (Polish Mediation Law), which introduced mediation as a separate part of Poland's Civil Procedure Code,3 entered into force on Dec. 10, 2005. This article compares the Polish Mediation Law with the proposed EU Mediation Directive.
The Proposed EU Mediation Directive
The EU Mediation Directive embodies the fruits of the EU Commission's multi-year research into methods of obtaining better performance in resolving civil disputes in Member States.4 Based on the Commission's evaluation of mediation legislation and practice in the Member States, it concluded that there was no need for it to regulate mediation or the appointment or accreditation of mediators. However, it determined that there was a pressing need for it to: (1) establish minimum common rules in the Community (i.e., by a directive) to ensure a sound relationship between mediation and judicial proceedings, and (2) provide tools for courts to actively promote the use of mediation, without "making mediation compulsory or subject to specific sanctions."5
The Explanatory Memorandum accompanying the EU Directive defines the Directive's tasks and objectives:
* There is need to ensure better access to justice for individuals and businesses in Member States by supplementing their national legal systems with amicable, non-adjudicative mechanisms, the first of which is mediation.
* Implementation of mediation in court proceedings should be coupled with relevant safeguards of due process and professional conduct, including clear rules tor mutual relationship between mediation and court proceeding (statutes of limitation, constitutional right to seek justice in court).
* The Directive is perceived as a promotion tool, encouraging civil mediation, as a legitimate mechanism for resolving civil disputes in a swift, inexpensive and professional manner.
* Mediation is expected to offload pressure on the court system and the plague of congestion of cases and long delays in case-handling, affecting virtually all Member States.
According to the EU, widespread use of mediation will bring measurable economic benefits to parties (e.g., reduced transaction costs) and society at large; it will also ease social tensions by building a new legal culture in and among Member States based on friendship, reasoned conversation and compromise.
Origins and Objectives of the Polish Mediation Law
The Civil Law Codification Commission at the Ministry of Justice and a panel of experts on civil and commercial law (including law professors, Supreme Court judges and distinguished practitioners) prepared the draft mediation legislation over the course of two years. The Commission invited comments from professional and business organizations like the Polish Arbitration Association, the Polish Confederation of Private Employers, the Business Centre Club, and law firms. …