Diego Faleck
Office:
Av. Nove de Julho, 3229/1104 – Jardim Paulista
01407-000
City:
São Paulo
Country:
Brazil
Tel:
+55 11 3052 4233

Questions and Answers:

Who's Who Legal Thought Leaders: Mediation

Diego Faleck is founder of Faleck & Associados, the first dispute resolution firm fully specialised in mediation and settlement counsel in Brazil, with a unique track record in complex business mediations, national and international, and dispute systems design for major national disasters. He received his LLM degree from Harvard Law School and his PhD degree from the University of São Paulo. Mr Faleck has held significant government positions in Brazil in antitrust matters and consumer protection.

WHAT INSPIRED YOU TO SPECIALISE IN MEDIATION?

Three things: the frustration with the court system; my contact with the problem-solving theory at Harvard Law School and its inspiring scholars; and testing mediation and the results achieved.

WHAT WAS THE MOST CHALLENGING ASPECT OF OPENING YOUR OWN FIRM?

I think it was the challenge of pioneering a field, such as the high level of uncertainty as to how the market would respond, and the time required to turn the practice into a sustainable and worthwhile business. It took courage and faith.

HOW DO YOU ENSURE THAT YOUR DISPUTE RESOLUTION BOUTIQUE STANDS OUT FROM ITS COMPETITORS?

I think I had the advantage of breaking the chicken-and-egg dilemma early on – nobody mediated because nobody had mediated – with a very public and successful high-end case. After 10 years, I have amassed a track record of cases that is difficult to match. I also strive to provide high-quality work, propose cutting-edge solutions, listen to the parties with humility and work with them in the process with empathy.

HOW HAS MEDIATION IN BRAZIL DEVELOPED OVER THE LAST FEW YEARS?

There has been an increasing number of cases in the market and the growing insertion of mediation clauses in contracts. Courts are using mediation, which makes it more familiar to parties.

THERE ARE OFTEN REPORTS OF SOME JURISDICTIONS HAVING MORE TRAINED MEDIATORS THAN DEMAND FOR SERVICES. TO WHAT EXTENT IS THIS REFLECTIVE OF THE MARKET IN BRAZIL?

It is the same here. It seems to be a winner takes all market.

WHAT ARE THE CHALLENGES CURRENTLY FACING MEDIATION PRACTITIONERS?

To acquire sufficient legitimacy so as to be perceived as someone who can really help parties resolve their disputes. This can happen in many forms, mostly by proving their value with experience and demonstrating certain desired qualities. Most mediators fall in the trap of believing that fondness of mediation, certifications, speaking engagements, etc, is enough.

WHAT IS THE MOST MEMORABLE MATTER THAT YOU HAVE WORKED ON?

I have three. 

First, the mediation programme I designed for victims’ compensation for the 2007 TAM aircraft accident. It set the tone of my career and gave me strength to pursue it wholeheartedly. 

Second, the CSN/IRB/Reinsurance Market case – it was my first reinsurance mediation, and very memorable. It received significant attention from the market, showing how a seemingly intractable problem can be solved through mediation. 

The third is a case I am working on now: a mediation programme for compensation of victims of the largest environmental tragedy in the history of Brazil, for over 450,000 victims, involving loss of property, small business, farm lands, sand extractors, fishermen and moral damages for lack of water supply.

WHAT ADVICE WOULD YOU GIVE TO YOUNGER LAWYERS LOOKING TO PURSUE A CAREER IN MEDIATION?

Get involved in a mediation project that may hire young mediators – a court-related initiative, for example – and do a great work. Find a mentor.

Biography:

Who's Who Legal Mediation

Diego Faleck is the founding partner of Faleck & Associados, the first dispute resolution firm fully specialised in mediation, settlement counsel and dispute systems design in Brazil, with a unique track record in complex business mediation and dispute systems design for major national disasters. He received his LLM degree from Harvard Law School and his Phd degree from the University of São Paulo and served as Interim Secretary and Chief of Staff of the Secretariat of Economic Law of the Ministry of Justice in Brazil, and commissioner at the National Commission of Private Insurance of the Ministry of Finance.

He has successfully mediated a wide range of national and international commercial, energy, ports and construction cases and partnership disputes, ad hoc and institutional, including ICC ADR and complex international multi-party high value reinsurance cases.

Most notably, he was responsible for designing and implementing successful compensation programs with the use of mediation for the accidents with flights TAM 3054 (2007), Air France 447 (2009) and the largest environmental disaster in the history of Brazil, for compensation of over 15,000 families for general damages and 450,000 beneficiaries for specific moral damages (ongoing). He is serving as the chief mediator in the project and currently supervises a staff of 50 full-time mediators.

Mr Faleck is a member of the panel of distinguished neutrals of the CPR Institute and other prestigious rosters of mediators in Brazil. He has been featured as a prominent dispute systems designer in Harvard Professors’ Frank Sander and Robert Bordone (et al) publication Designing Systems and Processes (Wolters Kluwer, 2013, appendix one).

WWL says: Diego Faleck is highly regarded throughout the market as “among the best coaches and mediators in Brazil".

This biography is an extract from Who's Who Legal: Commercial Mediation which can be purchased from our Shop.

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