Who can become a mediator? design

The website Law.pl reached the collective labor disputes bill, which was published on Friday afternoon on the website of the Central Government Legislation (UD 408). This is a completely new law, which should replace the current law of May 23, 1991 on the settlement of collective disputes, about which we have already written. One of the topics that the Ministry of Family and Social Policy wants to regulate is the issue of mediators in collective labor disputes. – Due to the fact that in the current legal situation the issues related to the functioning of the list of mediators in the Minister responsible for labor matters, as well as the statute of the mediator himself – are not specified in detail, in order to determine the position of the mediator, appropriate changes to the mediator’s working standards are necessary, and listing of mediators – explain the project authors in the justification.

Also read: Elite group of mediators of labor ministers >>

Mediator – Listing and Compensation Criteriae

The Ministry of Family and Social Policy suggests that the mediator on the list may be a person who:

  1. is older than 26 years;
  2. enjoys full public rights and has full legal capacity;
  3. has not been legally sentenced to prison for an intentional crime prosecuted by the prosecution;
  4. knows Polish verbally and in writing;
  5. has knowledge or skills in conducting mediation.

The candidate must submit the following with the application for registration on the list of mediators:

  • copies of documents confirming knowledge or skills in conducting mediation proceedings, including in particular:
  • information about the number of mediations conducted,
  • a list of publications on mediation,
  • opinions of mediation centers or natural persons about their knowledge or skills in the field of mediation,
  • documents confirming education or training in mediation.

And also a written statement that:

  • is older than 26 years,
  • enjoy full public rights and I have full legal capacity,
  • has not been legally convicted / sentenced to prison for an offense prosecuted by the public prosecutor,
  • knows Polish verbally and in writing,
  • is aware of the criminal liability for filing a false declaration under Art. 233 para. 6 of the law of 6 June 1997 – Criminal Code (Journal of Laws of 2022, item 1138).

A mediator candidate who is a foreigner must have a knowledge of the Polish language, confirmed by a certificate at least at B2 level on a global scale of language proficiency according to the Common European Framework of Reference for Languages: Learning, Teaching, Assessment (CEFR ) – European Description System for Language Teaching: Learning, Teaching, Assessment (CEFR).

According to the proposed art. 11 seconds. 3, the registration on the list must be made by the Minister responsible for labor at the request of the person requesting registration on the list. He who becomes new will also remove the mediator from the list (Article 13 of the draft). It will be possible in the event of the mediator’s death, the mediator’s request to be delisted, or if the mediator no longer enjoys full public rights, loses full jurisdiction or is legally sentenced to imprisonment for a intentional crime prosecuted against the prosecution. The Minister of Labor will be able to exercise this right after receiving information about the occurrence of the above cases.

Mediators from the list are also entitled to compensation for conducting the mediation procedure and reimbursement of the costs of the mediation procedure, including travel and accommodation costs. The compensation and reimbursement of costs incurred are specified in the agreement that the mediator concludes from the list of the parties to the dispute.

Pursuant to art. 15 seconds. 2 of the draft, the broker’s fee from the list is 8% for each day of the mediation procedure. the average salary in the previous year announced by the chairman of the Central Bureau of Statistics on the basis of the pension provisions of the Social Insurance Fund, with effect from the first day of the month following the announcement.

The fee may be lower if the disputing parties prove that the listing mediator has no funds to cover it, and the listing mediator agrees.

There will be preventive mediation

New is the introduction of so-called preventive mediation. The parties to the dispute may agree that the negotiations shall be conducted with the participation of a mediator (Article 7 of the draft). And if, as a result of negotiations, if the draft of Art. 10 seconds. 1, the employer does not take into account all requests submitted and the party that initiated the dispute maintains them, the dispute will be conducted with the participation of an impartial person, ie a mediator, jointly selected by the parties to resolve the disagreement . If, on the other hand, the parties to the dispute do not agree on the choice of a mediator within 5 days from the date on which the employer has rejected the claims, further proceedings to resolve the dispute will be conducted with the participation of an appointed mediator at request of at least one of the parties to the dispute by the Minister responsible for labor matters with lists of mediators.

In accordance with the current law on the settlement of collective disputes, negotiations to resolve a collective dispute by mutual agreement are conducted only by the parties to the dispute, without the involvement of third parties. As a result, the parties going to the mediation stage may already be in such a conflict that in many cases it is not possible to reach an agreement. In order to provide the opportunity to reach an agreement at the earliest possible stage of the dispute, it is therefore proposed the establishment of the so-called preventive mediation, aimed at preventing the conflict from escalating during the negotiations – emphasize the project promoters in the accountability of the project. In their view, this would enable the parties to avail themselves of professional assistance from a person who guarantees impartiality and assists in reaching a previous agreement, which in turn could contribute to an increase in the number of agreements concluded at this stage of the dispute is closed.

We support the issue of regulating the statute of mediators and establishing rules for the functioning of mediators in the minister responsible for labour. The direction of the changes in this area is correct, but as usually happens, some details require clarification – says Katarzyna Siemienkiewicz, an expert on employer employment law from the Republic of Poland. I points out: – The concept assumes that in the event that not all submitted claims are met and the party initiating the dispute continues to enforce them, the dispute will be conducted with the participation of a mediator. In our opinion, such wording of the provision suggests that the parties are prepared to continue the dispute. Therefore, the will to pursue the dispute must be expressed in a clear and direct manner, ie in the form of a written or electronic statement.

Katarzyna Siemienkiewicz also draws attention to the criteria that a mediator from the list must meet. – They largely correspond to what is laid down in Resolution No. 35 of the Social Dialogue Council of 18 September 2019. However, the requirement of knowledge or skills in the field of mediation is insufficient. He emphasizes that the mediator must have the knowledge and skills that enable him to conduct mediation effectively. In its view, the situation of the continuation of the dispute after the negotiation phase also needs to be clarified. – The provision of art. 7 seconds. 3 of the draft, which allows negotiations with a mediator, excludes the application of art. 10 seconds. 3 of the project, ie selecting a mediator from the list. It is therefore not clear whether the mediator selected by the parties in the negotiation phase can be a mediator in the mandatory mediation procedure phase, and whether it can also be a listed mediator from the start of the dispute, or another person by the parts selected for this function.- adds Katarzyna Siemienkiewicz.

– In my opinion, the project aims to make the procedures more flexible – says Marcin Frąckowiak, lawyer of Sadkowski i Wspólnicy, BCC expert for collective and individual labor law. As he emphasizes, the draft regulations show that after the negotiation phase, if the dispute is still ongoing, the parties will choose the mediator again. – They can choose the same one they chose at the stage of negotiations, and they can also choose another from the list of the Minister of Labor – says lawyer Frąckowiak. According to him, the regulation does not close the way to selecting a professional mediator from the ministerial list at the negotiation stage. – The regulation says that no one can oblige the parties to a dispute to choose a mediator from the list at the stage of negotiations, but no one prevents them from choosing a mediator from the list. – thinks lawyer Frąckowiak. And he adds: – My experience shows that if the parties are strongly against it, they choose a mediator from the ministerial list from the start. But even if it is an unqualified person, but this will allow the parties to agree, I think it will be less bad than if they kept arguing.

However, as lawyer Frąckowiak points out, the mediator is another person who is not responsible for this dispute. – Unfortunately, it sometimes happens that mediators have no knowledge of labor law and, for example, cannot state on the trade union side that their request is unrealistic and impossible to grant – he says. In the opinion of lawyer Frąckowiak, the draft does not completely solve the issue of collective disputes, which in an instant, under the rule of this law, will be conducted much more than today. – They will be able to fight for anything, even for the resignation of the hated president – he estimates.

The proposed law should enter into force one month after its promulgation. Mediators registered on the current list of the Minister of Labor can, after submitting the application, be registered on the new list maintained under the new law, if they meet the conditions of Art. 11 seconds. 2 and 4 of the draft law. Importantly, the mediators of the current list will retain their status as mediators of the list for a period of 6 months from the effective date of the Act.

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