Mediation is one of the more effective ways of resolving conflicts. It allows both parties to have a real say in the resolution of their dispute. When the parties to the proceedings live or are based in different countries and want to reach a jointly agreed out-of-court settlement, they can make use of the institution of cross-border mediation.
In today's article, I will explain what such a mediation in the European Union, while at the same time answering the following questions of a practical nature, which may certainly be of interest to you:
- On which matters cross-border mediation may apply?
- What is the difference between classic mediation and that of a cross-border nature?
- How long does it take cross-border mediation?
- What happens when the parties reach an agreement in mediation?
- What are the costs of cross-border mediation?
If, on the other hand, you would like to know the advantages of classic mediation, such as pre-divorce mediation, I refer you to this article: Mediation before divorce. You will also learn from it whether mediation will be compulsory for spouses seeking divorce in the near future.
In the meantime, I invite you to read this post on the legal aspects of cross-border mediation.
Cross-border mediation - in which cases can it apply?
Cross-border mediation is regulated by the EU Directive 2008/52/EC of the European Parliament and of the Council. At the same time, it is worth noting that this piece of legislation does not apply to cross-border mediation in general. In fact, it draws the line between mediation in civil matters and mediation in economic (commercial) matters. In my view, however, mediation can be carried out in any case which has a so-called conciliation capacity and where the dispute/conflict existing between the parties can be resolved by an agreement before a mediator.
In which cases is cross-border mediation most commonly used?
- classic disputes over the payment of debts,
- exercise of parental authority,
- contacts with children,
- parental abductions.
Cross-border mediation where there is a dispute of this nature - i.e. when?
According to Article 2(1) of the above-mentioned Directive, a dispute is cross-border in nature if at least one of the parties is domiciled or habitually resident in a Member State other than the State of domicile or habitual residence of any of the other parties on the date on which:
- parties have decided to use mediation after a dispute has arisen,
- the court decided on mediation,
- The obligation to use mediation arises under national law,
- For the purposes of Article 5 of the Directive, the parties were encouraged to use mediation.
What makes cross-border mediation different from others?
- Cross-border element - the parties to the conflict are from two different countries.
- It is usually conducted in the context of a comedy. This means that it involves two mediators who represent different legal orders.
- Cross-border mediation often also involves an interpreter, due to communication problems.
- It is often conducted by means of distance communication.
How long does mediation take?
As it is usually the court that directs the parties to the proceedings to mediate, it will, at the same time as such an order, set the maximum duration of the mediation. As a rule, mediation should last one month. It is worth noting, however, that when the parties fail to reach a common position within the prescribed time, it may be extended - at their mutual request.
Attention!
Exceptions to this rule include child abduction cases. If mediation is conducted under the Hague Convention, it must be completed within two to three days, as the entire Convention proceedings should be completed within six weeks.
Cross-border mediation concluded with an agreement - what next?
The parties, with the assistance and support of the mediator(s), work out a joint agreement that is satisfactory to each party. If this actually occurs, they sign the settlement agreement. At the same time, it is an agreement to apply to the court for its approval. The court, after consideration, may approve the settlement agreement if it is not contrary to the law or the principles of social co-existence, does not aim to circumvent the law or does not contain contradictions.
What are the costs of cross-border mediation?
- If the parties have been referred to mediation on the basis of a court decision, the amount of the mediator's remuneration in non-property disputes is PLN 60 for the first mediation session and PLN 25 for each subsequent session.
- In property cases, the mediator's remuneration is 1% of the value of the subject matter of the dispute. However, not less than PLN 30 and not more than PLN 1,000.
- When the parties themselves decide to mediate, the mediator's fees and reimbursement of his or her expenses are by joint agreement.
The costs of mediation shall be borne by the parties to the proceedings. Any exemptions, e.g. from court costs, do not apply in this case either. Therefore, the parties to the proceedings generally share the costs of the mediation 50/50, but they may agree on a different method of settlement.
Attention!
Both national and EU rules emphasise the positive importance of mediation in many places. This is evidenced, inter alia, by a rule providing for the reimbursement of 75% court fees to the party bringing the case to court when a settlement is reached in mediation. Only one conclusion follows. It is worthwhile to use the institution of mediation and strive to reach a consensus.
