Mediation in civil proceedings – an effective alternative to litigation

In civil proceedings, there is an increasing trend towards seeking solutions that enable disputes to be resolved quickly, at lower cost and to the satisfaction of all parties. One of the available tools for achieving this desired outcome is mediation – a procedure provided for in the Code of Civil Procedure, which allows a settlement to be reached in confidence, with the support of an impartial mediator.

Contrary to popular belief, mediation is not merely an ‘additional option’, but a fully-fledged dispute resolution procedure capable of yielding tangible procedural and financial benefits. In particular – in accordance with the Act on Court Costs in Civil Cases – reaching a settlement through mediation may result in a refund of up to 100% of the court fees paid.

Characteristics of court-referred mediation

Mediation may be conducted on the basis of an agreement between the parties or a court referral – both before proceedings are initiated and at any stage thereof. Mediation is voluntary, confidential, and its proceedings are not recorded in the case file.

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 mediation process and also accept the mediator. Furthermore, even after such a decision has been made, they may change their position if they see no possibility of an out-of-court resolution of the conflict and may withdraw from the mediation process.

Stages of mediation – from initiation to settlement

The mediation procedure follows a set pattern:

1. Initiation – as mentioned earlier, mediation may be initiated in two ways: at the initiative of the parties to the dispute themselves – through a joint application or agreement – or by order of the court. In the latter case, the court formally refers the parties to mediation, though participation remains voluntary. Such a referral is an invitation to talks rather than an order – the parties may accept or decline it. Even at this stage, it is important to determine whether the parties genuinely see room for compromise.
2. Mediation agreement – once a mediator has been selected and their appointment accepted by both parties, the rules of procedure are established. The mediator sets out the basic principles – in particular, the guarantee of confidentiality, the requirement for impartiality and neutrality towards both parties – and describes how the meetings will proceed. Costs are also discussed – the mediator’s fee, any additional charges, and how these will be settled between the parties. The aim of this stage is to establish a procedural framework that is acceptable to all participants.
3. Mediation sessions – mediation meetings may take the form of joint sessions – with both parties present at the same time – or ‘caucuses’, i.e. individual discussions between the mediator and each party. The latter model is sometimes used in situations of high emotional tension or where the issues at hand are particularly sensitive. The mediator’s role is not only to facilitate the discussion, but above all to support the process of seeking solutions that are realistic and satisfactory for all participants.
4. Settlement – if the parties reach an agreement, it is recorded in the form of a settlement agreement. This document should precisely set out the terms of the agreement, as well as the manner and deadlines for their implementation. At the request of the parties, the mediator submits the settlement agreement to the court for approval. Once a declaration of enforceability has been granted, the settlement becomes an enforceable title, meaning it can be enforced in the manner applicable to court judgments. It is worth noting that in civil proceedings, an approved mediation settlement has the same legal force as a court judgment.

Mediation costs and their settlement

The costs of mediation in civil cases are regulated by the provisions of the Regulation of the Minister of Justice on the remuneration and expenses of mediators. The rates vary depending on the nature of the case:

• in non-property matters – the fee is PLN 150 for the first mediation session and PLN 100 for each subsequent session,
• in property matters – the fee is 1% of the value of the subject matter of the dispute, but not less than PLN 150 and not more than PLN 2,000 for the entire mediation process.

Additional expenses related to the organisation of the mediation process may be added to these amounts, such as the cost of hiring a room or the mediator’s travel expenses if the sessions take place outside their office.

As a general rule, the costs of mediation are shared equally between the parties, unless they agree on a different method of bearing them – e.g. in a proportion corresponding to the degree of concessions made or contribution to the dispute.

Benefits of mediation

Mediation, as an alternative means of dispute resolution, offers a number of significant advantages, which make it an increasingly popular choice among parties to civil proceedings.

• Speeding up proceedings – unlike traditional court proceedings, which can last many months and often even years, mediation allows an agreement to be reached quickly – often within a few weeks. Avoiding the need for a lengthy exchange of pleadings, waiting for court dates and conducting extensive evidential proceedings significantly shortens the time taken to resolve the dispute.
• Reduced costs – mediation involves a significant reduction in expenses, both in terms of court fees and legal representation costs. Under the Act on Court Costs in Civil Cases, if a settlement is reached before the first hearing begins, it is possible to recover up to 100% of the claim fee paid. The costs of legal fees are also lower compared to a lengthy trial, which directly translates into savings for both parties.
• Confidentiality – the principle of full confidentiality applies during mediation. This means that information disclosed during mediation sessions cannot be used in further court proceedings unless it is covered by the settlement. This allows the parties to openly present their arguments and proposed solutions without fear of subsequent legal consequences. This is particularly important in disputes involving sensitive information, trade secrets or personal data.
• Flexibility of solutions – mediation allows for the development of agreements tailored to the individual needs of the parties. The settlement may include solutions going beyond the standard scope of a court ruling – e.g. establishing a detailed payment schedule, additional benefits in kind, or even forward-looking measures such as continued business cooperation. This makes it possible to reach a compromise that not only resolves the dispute but also helps to maintain business or personal relationships.

Limitations and risks

Mediation, whilst effective, is not a one-size-fits-all solution. Its success depends on the parties’ willingness to cooperate and their readiness to compromise. In cases of deep-seated conflict or bad faith, the mediation process may end without an agreement, thereby prolonging the entire proceedings.

Nevertheless, mediation is undoubtedly an extremely beneficial form of conflict resolution in many respects. The outcomes of the mediation process will certainly be the most satisfactory, as the parties take an active part in seeking a resolution to the conflict. If, on the other hand, you are interested in mediation proceedings, court-ordered mediation or similar matters, please make use of the services of HWW Hewelt Wojnowski Lindner i Wspólnicy.