Commercial mediation in Poland: new quality in business from 1 January 2016

Solutions provided in the Act on Supporting Alternative Dispute Resolution.

As of 1 January 2016 an act came into force on support for alternative methods of dispute resolution, drawn up by the Ministry of Economy in cooperation with the Ministry of Justice.

The new legislation is aimed principally at increasing the number of commercial cases that are referred to mediation and raising awareness among business people that mediation can be an alternative means to judicial proceedings. This solution also offers a cheaper, faster, and less formal method of ending a conflict.

Under the new legislation, among other things, a system of procedural and organisational rights and financial incentives has been introduced. Regulations have also been introduced concerning the qualifications of permanent mediators. Also exceptionally important for business is the fact that the new solutions also include tax incentives. The legislation provides for the option of settling payment of a correction invoice and other documents that make corrections to revenue and tax-deductible costs (correction of the tax base for PIT and CIT) during the current reference period. This will make retrospective correction of invoices a less onerous process than it has been up to now.

The act also introduces a range of changes to civil proceedings, for instance with regard to court costs, and allows costs of mediation conducted as a result of referral by a court to be included in court costs. There will also be changes to certain court fees that arise in connection with mediation proceedings. All of the solutions proposed in the legislation are intended above all to induce parties to attempt to resolve a dispute amicably instead of going to court.

The most important of the new regulations with regard to mediation include:

• the introduction of an obligation to state, in the first procedural pleading, i.e. the statement of claim, whether the parties have tried mediation or some other method of alternative dispute resolution,
• assessment by a judge, at each stage of the proceedings, of whether the case can be resolved amicably, and encouraging the parties to enter into mediation,
• making a motion for affirmation of an amicable settlement reached before a mediator exempt from court fees,
• facilitating appointment of a mediator from a publicly available list of permanent mediators,
• technical changes to procedure, including providing mediators with parties’ contact details as soon as possible, in order to expedite the review of cases,
• the possibility of making impoverished persons exempt from court mediation costs.

The act also provides for changes to arbitration. In this regard the new solutions include:

• a single-instance procedure for cases conducted in common courts for acknowledgement or confirmation of enforceability of judgements of domestic arbitration tribunals and for proceedings concerning claims for an arbitration tribunal ruling to be set aside (so-called “post-arbitration proceedings”),
• reducing the time limit for filing a claim for an arbitration tribunal ruling to be set aside from three to two months.

Resolution of a dispute amicably makes it easier for businesses to conduct their business activity and enables business to continue between firms, which usually is not possible following a lengthy and expensive court case. It is worth noting that the problem of lengthy and expensive commercial cases affects all businesses in Poland, including investors. Cases of this kind are frequently complex and all-embracing processes which destroy the business relationship between the parties. Thus institutions and mediation centres which can resolve conflicts that have arisen between a foreign investor and its business counterparty in Poland in a professional manner are needed. This is the idea behind the International Mediation Centre in Warsaw (Międzynarodowe Centrum Mediacji), which is intended for resolution of commercial disputes arising in cross-border business transactions, which operates as part of international bilateral chambers of commerce and industry www.mcm.org.pl

Source: TaylorWessing (December 2015)