Dr Ewelina Stobiecka

Attorney at law

I’ve been supporting entrepreneurs for almost twenty years in resolving commercial disputes in and out of court. I represent my clients as an attorney and negotiator and also act as a commercial mediator...
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Settle your dispute

A settlement possibly already at the preparatory stage. New solutions for the code of civil procedure and ADR.

Ewelina StobieckaComments (0)

One of the key issues of the current significant revision to the Polish Civil Procedure Code, which will come into force on 7th November 2019, is suitably preparing the parties and the court for the case, which is intended to contribute to the efficient resolution of the dispute. Ideally, the parties should already be able to conduct possible conciliatory negotiations at the preparatory stage.

How this will work in practice will be visible in the future. Meanwhile, let us look at the new regulations from the perspective of alternative dispute resolution methods.

Firstly I would like to point out that the new regulations also provide for a completely revised court proceedings structure which are based on the following three assumptions:

  1. court proceedings are subject to planning;
  2. the basis of the plan is all parties will have knowledge of their positions (audiatur et altera pars);
  3. the hearing is only conducted when there is a real need (the right to a court no longer identifies itself with the right to a hearing).

Thus, from the very start of the proceedings, the parties will be obliged to present all the evidence to confirm their claims and from the then, during the so-called “preparatory hearing”, they will be able to plan all the procedural steps with the judge, in particular the order in which the evidence is to be taken.

Thus in order to accurately plan and conduct the proceedings, the court must be fully aware of the claims and statements of the parties about the facts and all the conclusions of the evidence. Knowledge of the demands and statements of the parties at this stage may contribute to a new perspective on the case and to the start of possible settlement discussions.

The intention of the project implementers is that this preparatory phase should, among others, create conditions and tools for effective search for alternative forms of legal dispute resolution.

That aside, we anticipate there will be a huge new role for judges. The new regulations provide for their activation in the process of mediation between the parties, as described below.

Preparatory meeting

The key institution of the preparatory proceedings is the preparatory meeting. As a rule, it will be mandatory and should take place outside the courtroom. At this particular session, the respective activities will have an informal nature and it should be possible for the parties to conduct conciliatory negotiations during this session, which should not be disturbed by the parties’ fear that their statements made during these negotiations will influence the court’s later evaluation.

Therefore, in order to ensure the maximum effectiveness of the preparatory meeting, any statements made during the preparatory meeting will not be entered into the minutes.

The special role of the judge

As it is indicated in the justification of the proposed amendments, at the preparatory meeting during the judge’s debate with the parties and attorneys, the judge will determine the subject matter of the dispute in legal terms, i.e. he will explain the basis and factual background, while the parties will specify their claims. It will therefore be the time and place where the parties will initially familiarise themselves with their views on the legal aspects of the conflict, including possible methods to resolve the dispute. This debate must not be bound by formal rules of procedure, thus it is assumed that the judge will simply talk to the parties at this stage.

According to the project proponents, the judge’s presentation to gain a preliminary view on the case, including the possible outcome to the proceedings, will also strongly encourage the parties to reach a reasonable compromise (Article 205(6) § 2 of the Code of Civil Procedure).

This is a completely new situation in the Polish civil procedure, as so far at no stage of the proceedings the judge has presented his views or the envisaged decision until the hearing is closed and the verdict is formally announced.

It is clear that such meeting may contribute to emphasizing alternative methods of resolving conflicts and it is the judge, acting from the position of his authority, who will be able to take on the role of an arbitrator to try to find a resolution to the dispute and make the parties visible to the those elements that can resolve the dispute. At this stage it will be about seeking solutions for the parties to come to an understanding with convergence points.

As the project proponents stress, the dispute resolution does not necessarily need to consist of the judge determining and resolving the case, because prior to this, it is necessary utilise all possibilities to settle the dispute at the will of the parties themselves, i.e. by concluding a settlement, including with the assistance of a judge.

A hearing or the hearings in accordance with the plan agreed during the preparatory proceedings should be held on possibly several consecutive dates, with no interval of several months as it was so far.

The introduction of the preparatory proceedings phase aimed at concluding a dispute without a hearing also assumes the active involvement of the parties in the planning of the court proceedings in their case, thus making the parties jointly responsible for the manner and timing of the court proceedings.

Judge and mediator

The activity of the judge at this stage will complement the activities of the mediators (which, incidentally may also be carried out at subsequent stages of proceedings).

Initiating attempts to reconcile the parties will be a challenge for the judges. It is a completely new approach to the role of a judge in Poland, who until now has primarily been the host of the proceedings and the entire trial.

The new tasks will require judges to have special mediation skills and a certain change in the perspective of looking at the goal of settling the case. It will be important to make the parties aware of the benefits connected with an amicable settlement to a case.

The judge will be able to flexibly moderate the course of the conference with the parties. Therefore, if the parties are willing to open discussions to resolve the conflict, the judge should postpone the hearing in accordance with the new regulations (Article 205 (7) § 2, § 3 of the Code of Civil Procedure).

Also, the time set between consecutive dates, which in the new assumptions is to be short (in contrast to the current breaks of even several months), should be used to come to the necessary compromise between the parties.

According to the project proponents, as we read in the new law justification, it is important that the judge should be able to indicate the points to the parties at which their positions could be brought closer, to be active in seeking the circumstances with the parties which will bring them closer to the amicable settlement of the dispute. At the same time, it should be able to tone down those elements of the dispute which strongly antagonize the parties.

Participation of lawyers

The preparatory meeting will probably look completely different in cases with professional proxies and in complex cases. Here, it may be preceded by the exchange of further pleadings in order to clarify certain circumstances of the case.

Again, however, as the project proponents point out, it is emphasised that the main purpose of the hearing should be to seek a compromise with the parties and to settle the matter amicably at this stage of the proceedings. In the case of parties represented by professional lawyers and due to the complexity of the case, it may be all the more necessary to allow the parties to conduct longer negotiations or to seek the opinion of (external) experts.

The effectiveness of mediation during the preparatory phase will only be possible with the active involvement of the parties. Therefore, their attendance at the preparatory meetings must, in principle, be mandatory.

The penalties for failure to appear are relatively severe, especially in the case of the claimant. However, this is justified by the crucial importance of the preparatory meeting for the whole process.

When concluding a settlement agreement depending on the volume of the document covering it, it may be entered into the minutes of the preparatory meeting or included in a separate document, which is then an annex to the minutes (Article 205(8) § 2 of the Code of Civil Procedure). According to the new regulations, the settlement document itself may be prepared by the parties or their attorneys.

It would appear that the new provisions will significantly strengthen alternative dispute resolution methods and for the judge to actively participate in this process this may prove be crucial.

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Dr Ewelina Stobiecka

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