Mediation is an alternative dispute resolution method in which the parties try to reach an agreement through discussions facilitated by a mediator.

The above definition is very general, but it well reflects the essence of mediation: solving a problem through a supported dialogue between the parties. Because a mediator participates, mediation is also referred to as “qualified negotiations,” i.e., negotiations in which a neutral and impartial third party (the mediator) supervises the communication process.

Principles of mediation

The basic principles of mediation are:

• Voluntariness;
• Confidentiality;
• Impartiality and neutrality of the mediator.

The voluntary nature of mediation is its cornerstone. As a rule, the parties’ voluntary consent is the source of every action carried out in mediation (in particular, the parties must consent to its conduct and the conclusion of a final agreement). Consent expressed during mediation may be withdrawn by the party at any time (without negative legal consequences).

The confidentiality of mediation is crucial in the context of the parties’ free conduct of talks. The implementation of this principle is guaranteed by, for example, the impossibility of hearing the mediator as a witness in court proceedings regarding facts that he learned in connection with conducting mediation unless the parties agree to this (i.e., release him from the obligation to maintain the confidentiality of mediation). A party’s reference to statements or proposals made during mediation also has no effect in court proceedings.

The mediator’s impartiality is expressed in his obligation to treat the parties equally without being guided by his own assessments and beliefs. The mediator is also obliged to promptly disclose to the parties any circumstances (both before and during the mediation) that could affect his impartiality in the case.

The mediator’s neutrality means that he should not have an interest in resolving the dispute or determining its conclusion. However, if circumstances arise during mediation that could affect this interest, the mediator must disclose this information to the parties.

The advantages of mediation

Well-conducted mediation is the most effective tool for resolving a dispute between the parties. Among the most important advantages are:

• The speed of proceedings – the average time of mediation proceedings in Poland is over 10 times shorter than the average time of court proceedings[1];
  Equal position of the parties to the conflict – the parties in mediation have the same influence on the resolution of the dispute, owing to that there is a high probability that both will “win” (win-win situation);
• Low costs of proceedings – due to the speed and flexibility of the proceedings, the costs of mediation are much lower than the costs of court or arbitration proceedings,
• Flexibility of the procedure – the parties and the mediator themselves determine how the mediation will proceed, which allows for its course to be adjusted to their own needs;
• Confidentiality of the proceedings – unlike court proceedings, mediation is confidential so that third parties do not have the opportunity to learn about the conflict that has occurred. The parties can also freely present settlement proposals, which, in principle, cannot be used as an argument in court proceedings.

[1] Data published by Centrum Mediacji Sądowych [ENG: the Court Mediation Centre] – Średni czas postępowań mediacyjnych oraz sądowych w Polsce, [ENG: Average time of mediation and court proceedings in Poland], centrummediacjisadowych.pl.