Mediation in administrative and criminal proceedings: the experience of Poland

Abstract

A successfully constructed system of legal mediation is an additional effective tool for protecting rights, which contributes to the development of the rule of law. The domestic legislator provides for the possibility of using mediation in both administrative and criminal proceedings. However, a systematic analysis of the Code of Administrative Procedure of Ukraine and the Criminal Procedure Code of Ukraine indicates the lack of proper legal regulation of the mediation process in the relevant proceedings. In this context, the experience of Poland, where mediation is the subject of separate regulation in procedural codes, deserves attention. After all, the traditional model of alternative dispute resolution, developed for civil and commercial disputes, cannot be simply transferred to administrative or criminal justice, but requires systematic improvement: amendments to procedural legislation, adoption of additional by-laws, establishment of organizational and financial prerequisites, as well as information and educational initiatives. According to Polish legislation, mediation cannot be conducted before the initiation of administrative proceedings in a particular case. Actions aimed at conducting mediation may be initiated by submitting a request for this case, included in the party’s application to initiate administrative proceedings. The decision to refer the case to mediation will then constitute the first procedural action in the administrative proceedings. Moreover, there are no obstacles to conducting mediation before the decision is made in the case, in order to try to persuade the parties to accept the decision to be made. Equally important is the possibility of starting mediation after the party has filed an appeal. As regards criminal proceedings, in accordance with the criminal procedural legislation of the Republic of Poland, the court or a court officer during the trial, and the prosecutor or another body conducting these criminal proceedings at the stage of pre-trial investigation, may, on the initiative or with the consent of the defendant and the victim, refer the case to an institution or an authorized person for the purpose of conducting mediation proceedings between the defendant (accused) and the victim. Mediation within the framework of criminal proceedings may not last longer than a month, although this period may be extended on the basis of a substantiated request by the mediator for the time necessary to fully complete the mediation procedure.