The initiation of litigation is the result of the parties’ failure to reach an agreement on the conflict that has arisen. In most cases, however, this does not lead to a quick resolution of the dispute. Unfortunately, in Poland, court proceedings last for years, and the verdict—even a favourable one—that comes only after several years of litigation often does not meet the expectations of the winning party. This is not only about the content of the court’s decision but primarily about the business aspects of the benefits of winning. 

It is worth remembering in this connection that even if the parties were not able to reach an agreement before the case went to court, in Polish civil procedure it is still possible to use mediation during a pending court dispute (after a lawsuit has been filed). A settlement concluded before a mediator has the same legal effect as a court settlement (i.e., it is enforced in the same manner as a court judgment). These issues are regulated by Articles 183¹–183¹⁵ of the Polish Code of Civil Procedure (CPC). 

Mediation during litigation is possible: 

  • At any stage of the proceedings – it may take place immediately after the first exchange of pleadings but can also be conducted after a significant part of the evidence has already been taken. 
  • After the case has been referred to mediation by the court hearing the case, provided that both parties agree – either party may refuse to participate in mediation within seven days of receiving the court’s decision on mediation. 
  • Within a time limit set by the court, which may not exceed three months – in practice, however, if the parties wish to continue mediation, courts extend this period at the parties’ request. 

The parties have the ability to influence the choice of the mediator. If they fail to agree on a mediator, the court will appoint one. The mediator has the opportunity to review the case file before mediation begins, which is usually conducted through mediation meetings. 

What benefits can arise from mediation during litigation? 

  1. A faster resolution of the dispute – even though the case has already gone to court, mediation allows the parties to engage in settlement discussions with an independent third party, potentially leading to a quick resolution. 
  1. Confidentiality – all information and settlement proposals exchanged during mediation are confidential and cannot be used outside of mediation. If mediation does not result in an agreement and the case returns to trial, neither party can rely on information, settlement proposals, or statements made during mediation. This ensures a safe and comfortable negotiation process without the risk of exploiting the other party’s weaknesses (disclosed during mediation) against them at the later stage of the proceedings.  
  1. Finding compromise – a skilled mediator often helps parties identify areas for compromise that they had not previously considered before deciding to litigate. 
  1. A broader scope of settlement – a settlement reached before a mediator can cover a broader range of issues in dispute than those strictly covered by the lawsuit. In some cases, this allows for negotiations that address the overall business relationship between the parties rather than just the legal claims raised in court. 
  1. The legal effect of a court settlement – once approved by the court, a settlement reached before a mediator has the same effect as a court settlement, meaning it is enforceable in the event that one party fails to comply with its terms, just like a court judgment. 
  1. Cost savings – mediation significantly reduces litigation costs. The court reimburses the plaintiff for half of the court fee paid when filing the lawsuit (which, for high-value claims, can be a substantial amount), and the parties avoid the expenses associated with prolonged litigation. 

Conclusion 

Mediation in the course of litigation, as an alternative method of dispute resolution, is a valuable but often underestimated tool. This is usually due to the mindset of the parties, who, once they decide to litigate, often no longer see the possibility of reaching an agreement or are unaware that mediation can be conducted even during an ongoing court case. 

Of course, like any legal solution, dispute mediation can be beneficial when used appropriately and in line with its objectives. Therefore, it is always worth carefully considering the suitability of mediation during litigation. It is essential to take into account all the benefits it offers, particularly the possibility of obtaining an enforceable agreement in a short period while saving on litigation costs. However, it is also important to consider potential risks, such as prolonging proceedings or other strategic concerns related to the opposing party’s litigation approach. 

Nonetheless, mediation is undoubtedly an important instrument that can accelerate the desired outcome of litigation. It is certainly worth considering, especially for foreign entrepreneurs deciding to conduct or engaged in litigation in Poland.