Court Delays in Poland: Mediation as a Way Forward in Commercial Disputes

Article excerpt

  I. INTRODUCTION
 II. POLAND'S POST-COMMUNIST TRANSITION AND THE COURT
     SYSTEM TODAY
     A. The Transition
     B. The Court System
     C. Sources of Delay
III. THE RISE OF COMMERCIAL MEDIATION WORLDWIDE
     A. Mediation in Europe: The European Directive and Polish
        Civil Mediation Law
 IV. COMMERCIAL MEDIATION IN POLAND: DEVELOPING A PROMISING
     CONCEPT
     A. Changes to the Polish Mediation Law
     B. Implementation: Quality Control
     C. Implementation: Mainstreaming
        i. The Business Community
        ii. Lawyers
     D. Evaluation
  V. CONCLUSION

I. INTRODUCTION

In 2005, it took an average of 1,000 days to enforce a contract in Poland. (1) Six years later, Poland was still outranked by many of its fellow post-communist countries; (2) enforcing a contract took 830 days. (3) Though Poland fares relatively well in the cost of contractual enforcement compared to other Eastern European and Central Asian countries, (4) the number of procedures that must be observed, and the sheer length of time spent enforcing a contract from the moment of filing a claim to enforcement of the judgment is comparatively very high.

The repercussions of these delays are numerous, impacting Poland's private and public sectors as well as its image abroad. For example, the delays have led to domestic frustration with and poor public opinion of the courts. In 2005, only 1.8% of the public viewed the courts as quick, and only 5% were of the opinion that the courts were capable of enforcing their judgments. (5) In the international sphere, the European Court of Human Rights has entered judgments against Poland for violations of Article 6 (the fight to a fair trial) of The Convention for the Protection of Human Rights and Fundamental Freedoms principally due to court delays. (6) Moreover, some observers believe that inefficient contract enforcement may stifle economic growth in countries like Poland that have achieved higher levels of development. (7)

Despite the inefficiency of contract enforcement, however, businesses largely report that they use the court system. (8) The will of businesses to go to court despite the delays exhibits a great demand for efficient rule of law mechanisms. Moreover, the Polish government's reform efforts (9) show political will toward improvement, even in the face of vested interests. As such, there exists real opportunity for reforms that will increase judicial efficiency and decrease backlog in the courts.

Alternative Dispute Resolution, especially mediation, has gained traction in many countries as a part of an efficient dispute resolution framework. When integrated into court case management systems, mediation can contribute to the reduction of court delays and inefficiency. (10) Recognizing these and other potential advantages of mediation, the European Union issued a directive in 2008 encouraging the use of mediation in civil and commercial disputes. (11) it However, mediation is largely a new idea to Eastern and Central Europe, (12) requiring careful planning and effective implementation by policy makers for its success.

This Note will argue that mediation in commercial disputes could be a piece of the solution to Poland's court delays. In Part II, it provides a brief overview of the experience of Poland's legal system with the post-communist transition, and seeks to identify and explain the main sources of Poland's judicial inefficiency. Part III analyzes the strengths and weaknesses of mediation in the commercial context, and reviews the European Directive and Polish Mediation Law. It then proposes that an effective commercial mediation program could help reduce the inflow of commercial cases into court litigation and allow courts to reduce the current backlog in the system, thus helping decrease delays overall. A revamped mediation program may also decrease delays in commercial disputes by allowing businesses to circumvent the slow enforcement of contracts. …

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