In many EU countries, entrepreneurs are counting the losses caused by the coronavirus pandemic, which has had a particular effect on the retail sector, including small, medium and large enterprises in the shopping centre sector, which generates about 30% of the value of retail trade in Poland and is an important contributor to the national budget and which directly and indirectly employs about 650,000 to 1 million.
In addition lessees in shopping centres have been deprived of the opportunity to earn money and owners of these centres, where their income has significantly decreased, have been financially injured there.
The direction of claims are different because both owners of shopping centres with tenants (e.g. for the exemption from rent for the time during closure of the centres) and tenants towards the state (e.g. due to unconstitutional restrictions introduced, a problem which is present in many European jurisdictions) may be in dispute.
Entrepreneurs have reviewed their contracts in search of force majeure or emergency clauses and there is a lot of discussion on how the state can support the industry with state aid.
This business reality raises the question of how to resolve disputes in a situation where the courts do not operate or operate to a very limited extent through a sanitary regime, which sometimes means extended waiting times or cancellations.
The answer to these or other issues of entrepreneurs are alternative methods of conflict resolution, including economic mediation. This is because any dispute can be resolved through mediation, which in turn may prove to be quite an effective tool that can also be used during a pandemic.
Commercial mediation
Commercial mediation has been experiencing a revival in Poland in recent years, in particular the legislative environment for mediation, including a number of subsequent amendments to the law is aimed at encouraging entrepreneurs to mediate.
Mediation is a highly informal method of resolving disputes in business, which is several times cheaper than court proceedings or arbitration proceedings. Mediation can also be carried out using various means of distance communication (by video- or teleconference, or even in writing on-line). Mediation with the participation of a mediator can be carried out without their direct contact, i.e. – at present – without a threat to their health.
No special contractual arrangement between the parties is needed to use mediation. Mediation can also take place without a specific referral to a court when the parties themselves decide to have mediation conducted by an independent mediator of their choice or by an independent, specialised mediation centre (so-called private mediation).
In fact mediation can not only resolve an existing dispute, but can also “mediate” special contractual terms and conditions under special circumstances such as a pandemic. This may be important precisely in a situation where the parties concluding the contract did not foresee certain circumstances of their performance, such as the introduction of a state of epidemics or epidemic threat throughout the country.
Classical economic mediation consists of the participation of an independent commercial mediator in communication between the parties in dispute. The parties, as if moderated by the mediator in the mediation procedure, strive to find a solution which would be acceptable to both parties. The mediation process should therefore lead to a win-win situation.
The settlement agreement replaces the judgment
Practice shows that a solution worked out by both parties with the help of a mediator through economic mediation is usually implemented by them on a voluntary basis and no means are needed to force the parties to implement the settlement reached. It is worth remembering however that the settlement reached through economic mediation can be confirmed in court. In such a situation the mediator or attorneys of the parties ask the court to set a time limit during which the settlement agreement is formally approved by the court, which becomes an enforcement title and thus gains the value and legal force of the court judgment.
It is estimated that mediation is at least ten times cheaper than a court trial. Perhaps it is precisely this current, exceptional situation that will contribute to greater use of economic mediation in business and entrepreneurs will more often use this tool to resolve disputes.
Cost comparison: court proceedings vs. private mediation within the International Mediation Centre (www.mcm.org.pl)
The value of the object of the dispute: PLN 3,000,000
| Costs | Court proceedings | Mediation |
| Preliminary fees / registration of a case | 100,000 zł court fee | 1,500 zł net registration fee |
| Legal support services during the proceedings* | approx. 120,000 zł
|
|
| Mediation cost** |
|
15,000 zł net (15 mediation hours) |
| Experts opinion
|
approx. 3,000 zł | Not applicable |
| Enforcement proceedings | approx. 2,500 zł | Not applicable |
| Total sum | approx. 225,500 zł | 16,500 zł |
*costs calculated on the basis of World Bank data published in the Doing Business Report (Poland) 2017
** Cost of mediation sessions at the International Mediation Centre (www.mcm.org.pl)
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