Mediation can be of a contractual (extrajudicial) or judicial nature. As a rule, contractual mediation is more important because the parties themselves decided (in the first place) to resolve the dispute through mediation and were not referred to it by a third party – the court.

Contractual Mediation

Contractual mediation, as the name suggests, is conducted based on an agreement concluded by the parties. The agreement may be concluded through (i) a stand-alone agreement and (ii) a mediation clause, which is a part of the main agreement. The main agreement is a legal relationship, which might be associated with claims covered by subsequent mediation (e.g., sales agreement, construction contract, etc.). The parties may also decide on a so-called multi-stage dispute resolution clause, in which mediation will be indicated as one of the stages of resolving the dispute. If no settlement is reached within it, the parties proceed to court or arbitration proceedings.

The mediation agreement can be concluded in any form, whether orally or implied. However, to avoid any evidentiary problems, it is worth deciding to conclude it in writing.

A mediation agreement can also be concluded at any time, i.e., before any court proceedings, during court proceedings, or even after the judgment has been issued.

The only requirements regarding the content of a mediation agreement are to specify the subject matter of the dispute and the mediator or the method of selecting the mediator. The parties may specify the subject of the dispute by making a general reference to all possible disputes arising (or likely to arise) from a given legal relationship (e.g., a contract) or by indicating a specific dispute that has already occurred. When selecting a mediator, the parties have complete freedom here. The mediator may be selected, among others, by (i) indicating the characteristics that one should have, (ii) by name, and (iii) specifying the method of selecting one, e.g., by referring to a jointly agreed mechanism.

Optional elements of a mediation agreement include, for example:

• the place where the mediation will take place,
• the duration of mediation,
• the method of dividing mediation costs,
• the rules of mediation,
• the language of mediation,
• the way of conducting mediation.

However, it should be remembered that a too-detailed agreement may have the opposite effect of its intended purpose. For example, naming a mediator carries the risk that, if the mediator refuses, the agreement may prove ineffective.

In contractual mediation, the cost of conducting the mediation (mainly consisting of the mediator’s remuneration) depends on the arrangements between the parties and the mediator.

Court Mediation

Court mediation occurs when the court refers the parties to mediation as part of ongoing court proceedings. Such a referral is made by a decision specifying the duration of the mediation. However, this time may be extended at the parties’ joint request or for other essential reasons (if it will facilitate an amicable settlement of the case). Notably, the parties may not consent to mediation (the principle of voluntariness of mediation). In such a situation, the Presiding judge schedules a hearing.

It is also possible for the court to refer the parties to an information meeting on amicable methods of resolving disputes (including mediation in particular). Such a meeting may be led by a judge, permanent mediator, court referendary (clerk), judge’s assistant, or court official. Unlike in the case of referral to mediation, this meeting is mandatory. In the event of a party’s unjustified failure to appear, the court may charge it with the costs of the ordered appearance incurred by the opposing party.

The presiding judge may also (before the first session scheduled for a hearing) summon the parties to appear in person at a closed session to assess whether the dispute is suitable for resolution through mediation. Participation in this session is obligatory. Unjustified failure of a party to appear at this session may result in the court charging that party with the costs of the ordered appearance incurred by the opposing party.

In court mediation, the costs associated with mediation and the mediator’s remuneration are specified in the Regulation of the Minister of Justice.[1] The mediator’s remuneration in property rights cases is 1% of the value of the subject of the dispute but not less than 150 PLN and not more than 2,000 PLN. In other cases (i.e., in property rights cases in which the value of the subject of the dispute cannot be determined and in non-property rights cases), the mediator’s remuneration is for the first session 150 PLN, and for each subsequent session 100 PLN (in total, however, not more than PLN 450).

[1]Regulation of the Minister of Justice of June 20, 2016, on the amount of remuneration and reimbursable expenses of a mediator in civil proceedings [in Polish: Rozporządzenie Ministra Sprawiedliwości z dnia 20 czerwca 2016 r. w sprawie wysokości wynagrodzenia i podlegających zwrotowi wydatków mediatora w postępowaniu cywilnym].