Alternative Dispute Resolution (ADR) - why is it worth using?
Alternative Dispute Resolution (ADR) refers to the resolution of disputes outside the court system with the assistance of an impartial dispute resolution body.
ADR encompasses all non-judicial methods of dispute resolution, including:
- mediations,
- negotiations,
- conciliation committees,
- conciliation proceeding,
- arbitration.
Mediations
The essence of mediation is to find a solution satisfactory to the parties with the involvement of a mediator who lacks authoritative powers and does not adjudicate the dispute. The mediator's role is solely to facilitate the parties in reaching an agreement, assisting them in achieving a settlement. The goal of mediation is thus to develop a resolution that can be accepted by the parties.
Characteristics of mediation include:
- voluntariness (all the parties involved must agree to participate in mediation),
- autonomy of the parties (parties independently decide on the dispute resolution method),
- confidentiality of the proceedings,
- acceptability,
- impartiality of the mediator towards the parties,
- neutrality of the mediator regarding the issue,
- swiftness of the proceeding,
- low costs.
The confidentiality of the mediation process stems directly from the provisions of The Code of Civil Procedure. The mediator is obliged to keep confidential any information acquired during the course of conducting mediation (unless the parties release him from this obligation). The mediator cannot testify about the information obtained during the mediation process (unless the parties release him from this obligation). Furthermore, it is ineffective during proceedings before a court or arbitral tribunal to refer to proposals of settlement, proposals of mutual concessions or other declarations made in mediation proceedings.
Mediation can take on a direct form (parties and the mediator communicate directly with each other) or an indirect form (parties communicate with each other through the mediator in separate rooms or through the exchange of correspondence).
Indirect mediation may be applied in specific cases justified by the will of the parties or their well-being (e.g., high level of emotions, fear of confronting the other party, etc.).
Negotiations
Two-way communication process aimed at resolving conflict or reaching an agreement when at least one party disagrees with a given opinion or solution to a specific situation. The parties involved in negotiations seek to achieve their goals by reaching an agreement on the issues discussed and look for a solution that would be satisfactory to all. Negotiations typically involve individuals who are, in some way, interdependent and, therefore, have to establish a common position. Hence, it is the parties that are active during the negotiations.
Effective negotiations are based on the ability to recognize the needs of counterparts and find compromises between them (especially when the actual needs of the parties may be hidden).
Characteristics of negotiation include:
- voluntariness
- autonomy of the parties (parties independently decide on the dispute resolution method),
- possibility of maintaining confidentiality of the proceedings
It is worth emphasizing that in negotiations, we do not always deal with a conflict—they can concern, for example, signing a business contract and determining its conditions.
Parties may choose to conduct negotiations independently; however, in many cases, it is advisable to seek the assistance of experts. The involvement of independent experts can be very useful when emotions begin to play a role, and parties may lose sight of the actual situation. Experts can bring an element of impartiality to the negotiations and help remind the parties why they decided to negotiate in the first place.
Before negotiations, parties should precisely define the problem, as well as identify the benefits that successful negotiations can bring.
During negotiations, hidden interests, discrepancies, and conflicts are often revealed. Despite this, one should not forget the main reason for the negotiations. Of course, one can negotiate everything, and every dispute that arises during negotiations should be resolved. However, care should be taken to ensure that minor conflicts do not prevent the conclusion of an agreement.
One should always prepare well for negotiations.
The issue of confidentiality and secrecy of information obtained during negotiations is not obligatory, as in the case of mediation. During negotiations, parties can determine whether discussions are confidential and secret or not.
Conciliation proceeding
This is one of the forms of procedures aimed at reaching a settlement before entering into a dispute before a common court. The concept of conciliation proceeding applies to civil and labour law cases.
Characteristics of a conciliation proceeding:
- lower costs compared to judicial proceeding – the court fee is fixed and amounts to only PLN 15, and if a settlement is reached, it is one-tenth of the proportional fee due for the value of the settlement, which includes the fixed entry fee;
- can be initiated by a motion from both the creditor and the debtor;
- voluntariness;
- swiftness of the proceeding- the stage of court proceeding with all its formalism (evidentiary proceeding, appealing against judgments, etc.) is skipped.
- more favorable outcome resulting from reaching a settlement – the dispute does not escalate into a severe conflict, and the parties part ways in relative agreement.
Conciliation proceedings in civil cases are regulated by Articles 184-186 of the Act of November 17, 1964, Code of Civil Procedure. The purpose of conciliation proceedings is to settle disputes by settlement, before filing a lawsuit. According to the Code of Civil Procedure, a settlement is an agreement in which the parties make mutual concessions regarding an existing legal relationship. This is done to eliminate uncertainty about claims arising from this relationship, ensure their execution, or to resolve an existing or potential dispute.
As a rule, conciliation proceedings should end by reaching a settlement, with its contents recorded in the minutes of the meeting and confirmed by the signatures of the parties. In a situation where the settlement cannot be signed by the parties, the court states this fact in the protocol (Article 185 § 3 of the Code of Civil Procedure).
In labour law, conciliation proceedings are governed by Articles 244-258 of the Act of June 26, 1974, the Labour Code. According to Article 244 § 1 of the Labour Code, "conciliation commissions can be appointed for the conciliatory settlement of disputes arising out of employment relationships." The role of the conciliation commission is solely to facilitate the parties to the dispute in reaching a settlement and subsequently document the terms of the settlement reached in its presence. However, the conciliation commission cannot arbitrarily determine the essence of the dispute.
In cases concerning the termination, expiry, or establishment of an employment relationship, the conciliation proceedings are, by operation of law, terminated 14 days after the submission of the application by an employee, and in other cases - 30 days after submitting the motion. If no settlement is reached within these deadlines, the commission, upon a demand from the employee filed within 14 days from the termination of the conciliation proceedings, will immediately transfer the case to the labour court. If, in cases concerning the termination, expiry, or establishment of an employment relationship, the employee believes that the reached settlement violates their just interest, they can apply to the labour court within 14 days of reaching the settlement with a request to deem it ineffective. In other cases, this deadline shall be 30 days.
A settlement reached before the conciliation commission, following endorsement by the labour court with an enforcement clause, is subject to execution under the provisions of the Code of Civil Procedure.
Arbitration (arbitration court)
In Polish law, arbitration is regulated by the provisions of the Code of Civil Procedure (Articles 1154 – 1217).
The key features of this dispute resolution method include:
- voluntariness,
- generally, a single-instance structure (which affects the speed of proceedings),
- low procedural costs,
- confidentiality (public does not participate in arbitration proceedings),
- unlimited territorial scope - parties can freely choose the place of proceedings,
- the arbitral award, after being granted enforceability, can be enforced,
- the arbitral tribunal can also decide based on principles of law or equity,
- in the case of choosing arbitration, parties cannot pursue their claims in the common court.
Arbitration can be institutional (operating as a permanent arbitral tribunal) or ad hoc arbitration (established to resolve a specific case). Permanent arbitral tribunals operating in Poland include, among others, the Court of Arbitrationat the Polish Chamber of Commerce, permanent consumer arbitration courts, and the Arbitration Court at the Polish Confederation of Private Employers Lewiatan.
Arbitration can be used to resolve disputes involving property rights or non-property rights, where a settlement can be reached. However, matters related to alimony are excluded from this scope. In cases of labor law disputes, an agreement for arbitration is permissible only after the dispute arises and must be made in writing.
Referring a case to arbitration requires specifying the subject of the dispute, the legal relationship (e.g., a contract) from which the dispute arises, or may arise. Thus, an agreement can be made for a dispute that is yet to occur.
When deciding to submit a case to arbitration, parties, while maintaining the principle of equality, can regulate their rights and obligations differently than stipulated in the regulations of a permanent arbitral tribunal or the law, to have more influence over the conduct of proceedings. For example, they can independently: indicate the number of arbitrators, choose them based on qualifications or language proficiency (considering the provisions of Art. 1170 of the Civil Procedure Code), establish procedures (e.g., the place of arbitration, method of service, security measures, meetings venue, language of proceedings, deadline for filing a lawsuit and response), and determine rules for rendering decisions (authorize the arbitral tribunal to resolve the dispute based on general principles of law or equity, specify whether decisions will be made by a majority or unanimity of votes).
A challenge to an arbitral award can be filed, and it is reviewed by a common court. The grounds for filing such a challenge are specified in Art. 1206 of the Civil Procedure Code. An arbitral award or a settlement reached in arbitration has the same legal force as a judgment or settlement before a common court. Recognition or declaration of enforceability by a court is a condition for their legal effect.
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