Seeking for alternative dispute resolution methods is an increasingly popular practice both in Poland and abroad. There are various reasons why the conflicted parties attempt to avoid confrontation in court. Among the basic causes of this, one may name the fact that court proceedings are usually strictly formalized, costly and lengthy. Moreover, not without a meaning is the atmosphere of such proceedings, openness of trials and lack of actual influence on a ruling, which is basically dependent on the judge\'s consideration. In the maritime and shipbuilding trade, a high level of expert knowledge is required, which the court and the assessors usually lack - this may affect the decisions issued in such proceedings.
Considering those and other factors, bringing an action to court is oftentimes treated by parties as the last resort. It should be kept in mind, however, that the judicial proceedings are not the only way of dispute resolution. For there are alternative methods which may help avoid numerous inconveniences associated with court proceedings. Such alternative methods are called the ADR, that is the Alternative Dispute Resolution. The ADR forms include negotiations and conciliation, as well as mediation and arbitration, which constitute the subject of this editorial.
Among the basic advantages of the ADR one should indicate its adaptability, which is of crucial importance in regard to specific professions, e.g. the Seafarers. Due to their contractual employment, engagement in various areas of the world and the number of entities involved in their legal status, the ability to adjust the venue of the proceedings, their mode, language and applicable law is invaluable when it comes to employment-related disputes.
Mediation is an out-of-court procedure conducted by an unbiased mediator between the parties of a dispute. The aim of mediation is to lead to conciliatory resolution of a dispute. The basic virtues of mediation are its confidentiality, freedom and deformalization.
The fact that mediation is deformalized does not mean that there are no rules which govern its effectiveness and impartiality. Generally applicable law, which depicts mediation, includes the Directive 2008/52/EC of the European Parliament and of the council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, the civil procedure code, the penal procedure code as well as other legal acts and orders. As the variety of the aforementioned legal acts shows, mediation may be of use in a wide variety of cases.
Mediation may be based upon a contractual agreement or a court ruling. It usually commences with establishment of the mediator\'s fee and other fundamental rules. Next, the mediator hears out the parties’ reasoning, while the conciliation potential is determined. The mediator aims at finding direct solutions, which may cease the dispute permanently.
Despite the fact that an unbiased mediator is involved in the dispute resolution, mediation is designed to encourage the conflicted parties to work out a dispute solution by themselves. The mediator solely participates in settling common grounds by the parties, without making arbitrary decisions concerning the solution. The parties are therefore allowed to freely determine a remedy to their conflict. Due to the aforesaid, mediation guarantees a customized and independent course of dispute resolution.
An aspect, which is particularly significant in regard to mediation, is the legal force of the solutions worked out before an impartial mediator. A settlement effected in the course of mediation should be endorsed by court and, if applicable, an enforcement clause should be appended thereto. After the settlement is endorsed it attains a legal validity of settlement reached during court proceedings. The aforesaid means that such settlement is equivalent to a judicial sentence in terms of validity and enforceability.
Arbitral proceedings may generally be commenced upon an agreement between the parties. Such agreement may constitute both an arbitration cause included in a general contract, and a separate understanding of the parties in regard to a given dispute. Arbitration is therefore conditional on the parties\' choice.
Arbitration courts are non-public entities, independent of common judicial systems. Due to the aforesaid, the proceedings before them lack the strict formalism present in the common courts. Arbitration may take place both in Poland and abroad, in expert arbitration associations, such as the German Maritime Arbitration Association (GMAA), depicted in one of the previous editorials. This significantly simplifies pursuance of legal claims in regard to international disputes. Awards issued in the course of arbitration process abroad may be enforced in accordance with the procedure applicable in the state, where the rights deriving therefrom can be claimed.
In terms of the very form, arbitration courts appointed solely to judge a particular case may be distinguished (ad hoc arbitration), as well as courts, which function permanently, such as the aforementioned GMAA or LMAA (London Maritime Arbitrators Association).
Contrary to mediation, in the course of arbitral proceedings, parties do not seek to establish a dispute resolution by themselves – the dispute is, however, resolved by one or more independent adjudicators. The adjudicators are the ones who shall investigate both the factual and legal state of a given case. The parties may, as a rule, decide about the venue of the arbitration process, its language and applicable law. In the light of the aforesaid, it should be stated that the arbitration is in general highly adaptable.
Arbitration, unlike mediation, does not constitute a specific dialogue of the parties, conducted under the mediator\'s supervision. It is, actually, more similar to common court systems, as the parties eventually submit to the award issued by an adjudicator. Despite some similarities between the common courts and arbitral proceedings, there are many differences, which weight arbitration in favor of the traditional dispute resolution. The most significant virtues of said alternative method include the abovementioned adaptability, deformalization of procedure and, as a rule, cheaper and more prompt dispute resolution.
Alternative dispute resolution gains popularity among both the Polish and the foreign legal systems. It is fully justified, due to numerous advantages of these methods, which impact the quality and convenience of the proceedings. Parties willing to resolve their legal issues in such a manner should introduce relevant provisions into their agreements, which will submit them to mediation or arbitration in the event of a dispute. It should be emphasized that the alternative dispute resolution is especially expedient in regard to highly complicated cases, such as those related to ship-building and maritime trade, the Seafarers and others. In short, it should be stated that these alternative methods enable expert recognition of cases, adaptability, mutually satisfying settlement of disputes and lack of high costs and lengthy procedures present in common courts.
Radca Prawny Mateusz Romowicz
Asystentka Paulina Rosińska
For more information: kancelaria-gdynia.eu , prawo-korporacyjne.pl
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