Judicial mediation – what is it and what does it involve?

What is court-supervised mediation?

Court-based mediation is a dispute resolution procedure involving the introduction of an impartial third party between the parties to a conflict, whose role is not to settle the dispute but to assist the parties in reaching an agreement that satisfies both the claimant and the defendant. This person is the mediator, who, by encouraging the parties to actively seek opportunities for mutual agreement on the existing conflict, may help to avoid the need to go to court. They may also propose that the parties make other necessary arrangements, as well as carry out expert assessments and other activities, and suggest the content of the agreement.

Characteristics of court-based mediation

At its core, court-based mediation is characterised by voluntariness, confidentiality, impartiality and flexibility. The voluntary aspect of court-based mediation is based on the fact that the parties must unanimously express their willingness to undertake the court-based mediation process and also accept the mediator. Furthermore, even after such a decision has been made, they may change their position if they do not see the possibility of an out-of-court resolution of the conflict and may withdraw from the mediation proceedings.

In turn, the confidentiality of the mediation process means that the entire mediation process is covered by professional secrecy, which implies that the mediator is bound by a duty of discretion regarding the information provided to them during the mediation process. Another aspect of the confidentiality of court-ordered mediation is the storage of all documents in accordance with the relevant rules designed to protect the data and information contained therein.

The impartiality of court-ordered mediation is, first and foremost, embodied by the mediator themselves. They are always a neutral figure for the parties to the conflict and, consequently, do not assess the actions of either party, thereby not favouring the position of one side over the other. It follows clearly from this that, in mediation, the parties are treated equally, and therefore neither is in a privileged position vis-à-vis the other.

The flexibility of the mediation process appears to be one of the key advantages of this method of dispute resolution. The mediation process is free from the formal constraints characteristic of court proceedings, which are restricted by the provisions of specific legislation. In particular, elements of court-based mediation itself, such as the venue or the date of the meeting, are determined on an ad hoc basis by mutual agreement between the parties to the conflict.

Court-based mediation in various proceedings

The multifaceted nature of court-based mediation allows it to be applied in a variety of disputes. Mediation proceedings are successfully used in civil, family, commercial and criminal cases.

Court-mediated settlement in civil proceedings

In civil cases involving court-ordered mediation, we most commonly encounter matters relating to inheritance, employment or the extremely common disputes between neighbours. As indicated in Article 10 of the Code of Civil Procedure, in cases where a settlement is permissible, the court shall endeavour at every stage of the proceedings to resolve the matter amicably, in particular by encouraging the parties to engage in court-ordered mediation. The guidelines regarding court-ordered mediation in civil proceedings are set out in detail in Article 1831 et seq. of the Code of Civil Procedure, where the legislator has specifically regulated the voluntary nature of court-ordered mediation, the grounds on which it may be conducted, as well as the issue of impartiality and the requirements concerning the mediator, and their remuneration.

Court-ordered mediation in family matters

In family matters, court-ordered mediation is most commonly used in divorce and separation cases. It aims to reconcile the spouses and resolve the conflict with a view to potentially saving a failing marriage. If this fails, the mediation process can resolve key issues that would otherwise be decided by the court. These include, amongst others, the issue of maintenance or the division of joint property, including the use of the spouses’ shared home, as well as matters relating to the exercise of parental authority over minor children and contact between parents and children. In cases where contact with minors is the matter in dispute, the court takes particular account of an agreement between the spouses if it is in the best interests of the minor children. Through mediation proceedings, it is also possible to draw up a parenting plan pursuant to Article 58 of the Family and Guardianship Code.

Court-ordered mediation in commercial matters

In commercial matters, court-ordered mediation is most commonly conducted in cases concerning the termination of joint ownership or claims for payment of monetary sums. In commercial matters**, court-ordered mediation** enables the amicable resolution of disputes arising between businesses in connection with their commercial activities. It is admissible in disputes where the relevant provisions permit the conclusion of a settlement, particularly regarding payment, performance of a contract, as well as the determination of claims by partners and shareholders, and the establishment of obligations under a consortium agreement.

Court-supervised mediation in criminal proceedings

In criminal cases, court-supervised mediation takes on a slightly different dimension. In criminal matters, court-supervised mediation offers the parties the opportunity to resolve amicably a problem arising from a committed offence on mutually agreed terms. Through the use of court-ordered mediation, both the victim and the defendant have the opportunity to express their views on the consequences of the offence committed, as well as their expectations of the other party. Thus, undertaking mediation proceedings provides the defendant with the opportunity to directly express remorse for the offence committed, as well as a willingness to make amends for the harm caused. This is significant in that, under the Code of Criminal Procedure, the institution of active remorse constitutes a mitigating circumstance, the presence of which can have a dramatic impact on the final sentence handed down by the court.

Is court-ordered mediation a beneficial solution?

Court-ordered mediation is undoubtedly an extremely beneficial form of dispute resolution, not only in terms of financial relief but also emotional relief. Mediation proceedings offer the chance to save time spent on resolving the dispute, significantly reduce the associated costs, and, moreover, lower the level of stress resulting from protracted court proceedings. Court-based mediation allows the parties to the conflict to work together to develop a solution satisfactory to both sides through their active and joint participation; where a consensus is reached, this results in greater satisfaction for the parties and also ensures a higher likelihood that the parties will adhere to the settlement they have jointly drawn up, as they are the authors of it themselves.

If you are interested in mediation proceedings, court-based mediation or similar matters, please contact HWW Hewelt Wojnowski Lindner i Wspólnicy.