An Introductory outline of Family Mediation in Polish Civil Procedure – comparative perspective

1. An Introductory outline of Family Mediation in Polish Civil Procedure – comparative perspective Dr. Marcin Białecki Adjunct, Cardinal Stefan Wyszyński University in Warsaw, Poland Lecturer, ERA Trier (Germany)Advocate (ORA Łódź, Poland)

2. Mediation • Mediation is a dispute resolution process in which, as an alternative to judicial or administrative decision-making process, the parties are assisted by an impartial and neutral professional, called – mediator, in order to analyse the situation arising from the dispute and to try to reach the agreement. • Key elements of Family Mediation and its basic principles from the comparative law perspective will be also presented.

3. ADR – alternative dispute resolution • The presentation will be focused on Family Mediation in Polish Civil Procedure with the emphasis on the breakdown of marriage, separation, divorce, crisis of the couple, contact rights of parents and grandparents, maintenance among relatives.

4. Introduction – from 10th Dec. 2005 /Code of Civil Procedure • mediation is voluntaryand confidential • experience of severalcountries • high satisfaction of the parties • autonomy of the parties • ‘individual’ justice • independencefrom the court and the court proceedings

5. Deontology – legal advisors • Code of Conduct for Legal Advisors • obligatoryinfromation on ADR /ex. England, USA, Canada/ • ‘auto – test’ /the Netherlands/

6. Mediator • A natural person with full capacity to perform acts in law and entitled to full public rights may be a mediator. • A judge may not be a mediator. However, this does not apply to retired judges. • Social and professional organisations may keep a list of mediators and establish the means of mediation. A mediator must give his written consent to be listed as such. Information on lists of permanent mediators and means of mediation shall be submitted to the president of the regional court. • A permanent mediator may only refuse to conduct mediation for serious reasons, of which he shall immediately notify the parties concerned, and, where the parties were referred to mediation by a court, notify the court.

7. Mediator • A mediator shall remain impartial in conducting mediation. • Mediation shall not be open to the public. A mediator shall keep any facts disclosed to them in connection with mediation confidential, unless released from this obligation by the parties. • Any proposed settlements, mutual concessions or other statements made in mediation shall have no effect when invoked in the course of proceedings before a court or court of arbitration.

8. ‘divorce mediation’‘family mediation’ • MATRIMONIAL PROCEEDINGS • Divorce and Legal Separation Cases • Other Family Cases and Guardianship Cases

9. Divorce and Legal Separation Cases • Where there are reasons to believe that a marriage can be saved, the court may refer the parties to mediation. Parties may be referred to mediation despite a possible stay of proceedings. • The provisions on mediation apply accordingly, provided that reconciliation of the spouses may also be the object of mediation.

10. Family Mediator • If the parties have not agreed on a specific mediator, the court shall refer them to a permanent mediator with relevant theoretical knowledge, such as in a particular psychological, pedagogical, sociological or legal background, as well as practical skills of mediation in family cases.

11. Judgement • The court may, at any stage of a pending case, refer parties to mediation in order to amicably settle disputes concerning: • satisfaction of family needs, • maintenance, • parental authority, • right of access with children and property issues to be provided for in a divorce or legal separation judgment.

12. General provisions • The court may refer parties to mediation until the end of the first scheduled hearing. After the end of such hearing, the court may refer the parties to mediation only subject to a joint petition from the parties. • The court may refer parties to mediation only once in the course of proceedings.

13. Appointment of the mediator • When referring parties to mediation, the court shall appoint a mediator; however, the parties may choose another mediator. The court may allow the mediator to access the case files, subject to a joint petition from the parties.

14. Period of the mediation • When referring parties to mediation, the court shall determine the period of such mediation of up to one month, unless the parties jointly request a longer period for mediation. In the course of mediation, such period may be extended upon a joint petition from the parties.

15. Validation by the court • A settlement reached before a mediator, once validated by the court, shall have the binding effect of a settlement reached before the court. A settlement reached before a mediator, once validated by the court, shall have the binding effect of a settlement reached before the court. • integrity of the divorce/separationjudgement