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Dispute Resolution in Poland Issues and new developments in dispute resolution in Poland.

Is mandatory online mediation admissible?

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Both national and EU legislations allow solutions which provide for mandatory participation in ADR procedures available online.[1] From a policy-making perspective, the introduction of mandatory online mediation may be considered expedient in many respects. Firstly, it is effective: quick, cheap, convenient, as it does not require any movement etc. It is associated with a greater availability and feasibility of legal protection, in particular for a consumer. Lack of the mandatory nature very often creates a situation whereby entrepreneurs do not agree to mediation. Secondly, mandatory mediation can be reconciled with the constitutionally guaranteed right to court proceedings, provided that, among other things, the freedom of settlement and the admissibility of legal action, in the event mediation does not lead to a settlement, are retained. Thirdly, these type of proceedings are adjusted to the nature of many disputes characteristic for contemporary legal transactions, in particular activities arising from online trading (i.e. legal acts also performed via the Internet) or other types of Internet activity (disputes regarding domains etc.), as well as other matters with participation of consumers, with low claim values, cross-border matters etc., namely matters for which court proceedings are too formalized, long-lasting or costly, and consequently, not sufficient to be treated as an actually available manner of guaranteeing legal protection arising from substantive law. Fourthly, cautious implementation of mandatory online mediation in specific categories of matters is supported by international experience. Fifth, an obligation to join ADR often refers only to the “stronger” party – an entrepreneur. Consequently, it does not lead to a deprivation of a consumer of a possibility to choose enforcement of substantive law protection standards in court proceedings.

De lege lata Polish law does not stipulate online mediation explicite. However, the legal environment is currently subject to substantial transformations, in particular in respect of mediation in consumer matters. On November 9, 2016, 15 months will elapse from the deadline for the implementation of Directive of May 21, 2013 on alternative dispute resolution for consumer disputes (the so-called Directive on consumer ADR).[2] Poland was among a mere three countries (in addition to Croatia and Portugal) that have not implemented the Directive into their legislations to date. The Act of September 23, 2016 on an out-of-court solution of consumer disputes was adopted by the Senate without amendments on October 21 this year and is currently awaiting the President’s signature. It will become effective after a two-month vacatio legis. Introduction of the regulations implementing the Directive is necessary to ensure a possibility of application of the Regulation of May 21, 2013 on online dispute resolution for consumer disputes.[3]

The Directive and the Regulation are intended to ensure that consumers throughout the European Union possess efficient and actual access to out-of-court pursuit of claims, especially to mediation procedures, on the basis of uniform, minimum standards for ADR, in particular in an online form. The model of the ADR system proposed in the act on out-of-court resolution of consumer disputes covers three types of entities. The first type comprises ADR entities created by entrepreneurs from a specific industry. The second type of ADR entities comprise public ADR entities from the industry existing “at” the administrative authorities of a specific industry, such as for example the President of the Energy Regulatory Office, Financial Supervision Commission or Financial Ombudsman. The third type comprises an entity of a horizontal nature, namely a Trade Inspection – the scope of its activity will refer to the matters not covered by the competent sectoral entity. Both sectoral ADR entities and the structures of the Trade Inspection offer the resolution of disputes through arbitration or mediation. President of the Office of Competition and Consumer and Protection shall be competent for the supervision of the entire system due to its location in the Polish system of consumer protection and horizontal nature of the competencies.

The Act on out-of-court resolution of disputes only mentions mandatory mediations (without differentiation whether in an online form or otherwise) in art. 31 section 1.[4] Similarly, a concise solution – allowing mandatory mediation on the national law level, although without detailed regulations – was included in the Directive.[5] In both cases an obligation to join mediations can only refer to the “stronger” party – an entrepreneur.

De lege lata, the financial market entities are obligated to participate in ADR procedures in connection with the proceedings carried out by the Financial Ombudsman. Pursuant to art. 37 of the Act of August 5, 2015 on handling of complaints by financial market organisations and on the Financial Ombudsman, their participation in the proceedings regarding resolution of disputes between a client and a financial market entity is mandatory. No obstacles exist to using online mediation in the proceedings carried out on these grounds. These matters must be treated as a pilot system, and depending on its results – similar solutions should be implemented in a wider scope.

[1] The phrase „procedure (available) online” was adopted in Directive 2013/11/EU, art. 8 letter a) and subsequent letters, as referred to below.

[2] Directive of the European Parliament and of the Council 2013/11/EU of May 21, 2013 on on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), OJ L 165, 18.6.2013, p. 63–79.

[3] Regulation of the European Parliament and of the Council (EU) No. 524/2013 of May 21, 2013 on online dispute resolution and for consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR), OJ L 165, 18.6.2013, p. 1–12.

[4] Art. 31 section 1 of the Act stipulates that „An entrepreneur which undertook or is obligated under separate regulations to use out-of-court resolution of disputes with consumers, shall notify the consumers of the entity entitled which is relevant to this entrepreneur.”

[5] See i.a. item 39 of the Recitals of the Directive.