Poland
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Both before and during court proceedings, the parties can engage in mediation, during which they may agree on the terms of a settlement. If mediation begins after court proceedings have commenced, the court approves the settlement formally concluded by the parties, which will acquire the force of a judgment. The parties can also, before or during the dispute, conduct settlement negotiations (known as out-of-court or court settlement). If they reach an agreement, in a dispute already before the court, the court will formally approve the settlement, which will acquire the force of a judgment.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Involvement in ADR does not affect pending litigation or arbitration. However, the practice is to postpone consideration of the case until the ADR process is completed, unless it is significantly prolonged. The standard is to allow the parties to reach a settlement through ADR within three months.
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
The legislator has adopted ADR solutions to the rules of commercial court proceedings but nevertheless they are not mandatory. The judge can refer the parties, for example, to mediation. However, if they do not jointly agree to it, the court is obliged to proceed with the court action. There are no plans to implement solutions with consequences for not engaging in ADR.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes, the relevant provisions should be included in the contract.
When does ADR generally take place?
Both before and during court proceedings, by mutual consent of the parties, on the initiative of the parties or the court.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes, ADR is confidential. If there is a violation of this rule, for example, by informing the court about the course of ADR, the court should not consider the information so obtained.
Does the output from ADR create precedents?
No, it does not.
Who bears the costs of ADR?
Both sides in equal measure.
Is your jurisdiction subject to any specific rules for cross border ADR?
No, it is not. The United Nations Convention on the International Settlement Agreements Resulting from Mediation (Singapore Convention) is not in force in Poland.
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
In Poland, a court mediator is a person entered in the list of mediators maintained by individual courts. The enrolment is preceded by a formal procedure in which the candidate for mediator should provide proof of their mediation skills and knowledge in the field.
It is not permitted to use ADR tools in cases that cannot be subject to settlement, such as a paternity case. However, in most cases, including business disputes in particular, ADR is permissible.
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