Regulations concerning the conciliatory proceedings in civil law are formulated in articles 184-186 of Civil Procedure Code (Kodeks postępowania cywilnego) that is currently in force. This seemingly inconsiderable institution constitutes a very practical solution in court rooms.

The possibility of conciliatory way of settling the case before the trial depends only on the activity and good will of both parties. Therefore, it is vital to be familiar with what one can gain and what is the actual risk of the conciliatory proceedings.

What type of cases is the conciliatory proceedings admissible in?

Civil Procedure Code (Kodeks postępowania cywilnego) regulates this matter in the article 184, indicating on:

“every civil case, that type allowed us to”

In practice, it means that it is permissible to effectuate the conciliatory proceeding in unlimited number of matters of dispute, and in particular in:

–         property law

–         non- proprietary right

–         belonging to procedural law

–         belonging to non-procedural law.

The sole restriction is the requirement that the proceeding has to be led in cases that belong to the judicial way.  This requirement results from the essence of conciliatory proceeding, which are supposed to obviate bringing an action or starting non-procedural proceeding.

Moreover, the exclusion of practical application of conciliatory proceeding results from some specific regulations.
For instance, such a restriction appears in cases that are considered in separate proceedings, e.g. in social insurances (art. 477 ze zn. 12 k.p.c.) and in cases examining the pattern of agreement as illicit (art. 479 ze zn. 41 k.p.c.).

Who and when can initiate the conciliatory proceeding?

• The conciliatory proceeding can start only by putting forward a motion of agreement attempt;
• Such a motion can be put forward by anyone who has a civil case that is considered in a judicial way and who is the entity of the case or who has the only legal right to sue on behalf of the subject;
• In the light of the general regulations of the Polish Civil Procedure Court (k.p.c.) as long as private persons are concerned-  solely a person who has a capacity to be a party in a given civil case (art. 65 k.p.c.)  can be the initiator. In case of person who were incapacitated, the motion can be put forward by a statutory representative;
• The motion has to be put forward ALWAYS  before the instituting the actual action in the given case.

How to decide which court is adequate for taking the case into consideration in conciliatory proceeding?

• The district court is always the adequate court for conducting a conciliatory proceeding,without regard to the value of the object of litigation.

ATTENTION!

The conciliatory proceedings should be conducted exclusively in the civil departments of district courts.

What formal demands are required in the summons for agreement attempt?

• A motion for a conciliatory proceeding is lodged as a pleading and therefore it should contain such elements as: designation of the court, participants, statutory, kind of pleading, signatures, supporting documents (art. 126 k.p.c.).

ATTENTION!

It is not required to adduce the circumstances or to name the evidence in the motion.

• The summons for agreement attempt  is also supposed to contain the current address of the person that is to be called to agreement. The demands for a settlement of the administrator are illicit in such cases (according to the opinion of Supreme Court from 1st July 1946, C. II. 286/46, LexPolonica no. 419520, PiP 1946, no. 9-10, p. 173);
• The motion should concisely describe the facts of the case.

ATTENTION!

That is no matter what the value of the object of the litigation is- the constant court fee for a motion of conciliatory proceeding is 40 PLN.

What is the procedure?

• The conciliatory proceeding is conducted in a bench composed of one judge;
• After the formal verification of the motion, the given case is directed to conciliatory session. Both participants of the case- proponent and adversary- are informed about the date of the session by the court;
• The session of the conciliatory attempt is held on the public meeting with the official record written;
• In the conciliatory proceeding the party of a case can act on his/her own or by the representative. Nevertheless, concluding the agreement itself by the representative requires full power of attorney;
• When the agreement is settled both participants of the given case (or their representative with full power of attorney) have to put their signature on, and the content of the agreement has to be in the official record;
• When the parties of the case cannot reach the agreement, the case is understood to be finished with the end of the meeting when it was decided by the court that any further negotiations are reasonable. In such cases the court does not need to bring out any verdict.

ATTENTION!

The conciliatory proceedings cannot be presented into the examination as standard civil law cases in court of first resort by means of  alteration of a motion into standard lawsuit.

In such cases the separate petition must be brought which could happen only after the end of the conciliatory proceeding.

The presence/absence of the parties of the case and the overall costs of the conciliatory proceeding.

• In the light of the general rule- all of the costs (e.g. court fee of the motion, expenses of drive) are mutually cancelled unless the parties decided differently in the agreement (art. 104 k.p.c);
• The obligation of reimbursement of the costs can be put on the proponent if she/he is absent on the meeting. In such a situation the adversary has to bring an adequate motion;

ATTENTION!

The proponent is not an absentee if there is a representative in the court with the full power of attorney.

If the adversary is absent on the conciliatory meeting, the court cannot put on this person an obligation of reimbursement of the costs. Nevertheless, if the absence was unjustified, on the motion of a proponent, a court can surcharge the adversary in the actual law proceeding.

Why it is this worth to initiate the conciliatory proceedings?

• As the judicial proceedings are often expensive and time-consuming this is worth trying the conciliatory way of  problem solving. In this case the costs are always 40 zlotys, no matter what is the value of the object of litigation;
• The conciliatory proceeding is not formal therefore it is said to be very quick. Only brief describing of the facts of the case is required to initiate such action, and the hearing of evidence is limited;
• The conciliatory proceeding is held in the presence of judge which means a lot of respect and prestige.
• It is much more profitable and simple than e.g. settlement out of court. It is because conciliatory proceeding constitutes a legal title for likely court execution (art. 777 k.p.c.).

Kornelia Kłos, M.A.
lawyer’s apprentice in Nartowski – Trojanowska Lawyer’s Chambers in Cracow