Diego Faleck, founder of Faleck & Associados, is full-time mediator and settlement counsel, with a unique track record in national and international business mediations and process design for compensation arising from major national disasters and special situations. He has an LLM from Harvard and a PhD from the University of São Paulo. He has held significant government positions in antitrust and consumer protection matters. He is adjunct professor at Pepperdine University, and the author of many books and articles.
What attracted you to a career in mediation?
I always trusted negotiation as the best way for resolving disputes with effectiveness and efficiency. From my early days of litigation practice, I would always be looking for a window of opportunity to engage the other side in order to resolve a case. Further in my career, I dived deep into the study of negotiation and disputes systems design, from the soundest sources I could find. When facing a real-life problem in designing a dispute resolution system to enable compensation for families of the victims of an aircraft accident in 2007, I realised that mediation would be a very valuable tool to experiment with. It worked very well, helping to resolve seemingly intractable problems with the utmost tranquillity. I understood the value of mediation and my personal aptitude for it. New opportunities for mediation work increased. I then realised mediation was a craft worth devoting myself to.
Do you think attitudes to mediation in Brazil have changed following the 2016 Mediation Act?
Definitely. The use of mediation is growing. I feel mediation is increasingly viewed as an orderly process to be considered as part of one’s strategy, rather than a novelty.
In which areas have you noticed an uptake in mediation proceedings?
In our practice: reinsurance, construction, energy, oil and gas, partnership disputes, real estate, judicial recovery, and victims’ compensation.
What do you find most interesting about working on victim compensation mediations?
I think it is the pinnacle of complexity. It is not only about mediation or facilitation. It is also about process design and project management. It involves dealing with an immense amount of cases and managing large teams to deliver fair, humane and efficient outcomes for people and businesses going through difficult moments in their lives. Such cases invite a great deal of attention and public scrutiny. Our teams strive for impeccability at all times. We have developed cutting-edge and tailored mediation and facilitation strategies; devised careful processes to minimise errors and bottlenecks; and invested a great deal in quality control, training and developing our human resources. We work on procedures that make big words – such as transparency, equal treatment, consistency and procedural justice – a reality.
How has covid-19 impacted mediation practice?
First, with the use of virtual meetings. Second, I have the impression that the notion of using litigation or arbitration as a last resort only is gaining strength. This may result in more mediation cases. Third, I see a kind of a “gold rush” in the mediation market, with an impressive number of entrants marketing their services and running webinars.
What procedural issues do you see arising from covid-19 where the majority of participants continue to live under lockdown?
Although second-best, virtual mediation sessions have been working very well. There are specific concerns as to the ethics of the online environment (not recording, limiting access to authorised people, etc) that require mediators to adapt the “ground rules” they normally propose.
As the founder of Faleck & Associados, what are your main priorities for your firm’s development over the next few years?
First, to keep up the hard work on current and future cases so as to continue elevating our leadership in business mediations and procedural design for special situations. We are currently engaged in probably the most complex crisis, and most special circumstances, in Brazil. We are restlessly open to new challenges and are often called upon by businesses and organisations interested in advancing the frontiers of consensual dispute resolution, and building effective solutions to problems. Second, we are looking at expanding our international practice, and have been discussing opportunities. Third, we rely on the development and consolidation of our associates as a strength in expanding our capacities. We have developed a winning mediation method and invested a great amount of energy in training, mentoring and providing resources for improving skills and maximising our associates’ performances. We have a pool of 130 talented full-time mediators employed at our firm. We may be one of the world’s largest private mediation firms. Our senior associates, with thousands of hours of experience mediating difficult cases, have been developing new fronts in business and judicial recovery cases. With that, we intend to make our services available and accessible to a wider range of situations.
What advice would you give to someone interested in becoming a mediator?
Mediation tends to attract people who are looking for a career change and perhaps more personally rewarding work. Most have been frustrated by the lack of business. This is a market with low formal but high de facto barriers to entry. Mediation training is important, but does not offer a tenth of the skills needed for a successful practice. A good track record, hands-on experience and a strong reputation matter immensely. I would caution against over-optimism and status spillover – achievements in different areas of work or law may not make up for the lack of focused experience in mediation. I would advise aspiring mediators to hone their skills, to be resilient and to build the practice brick by brick. Mediation is about getting people to agree. The test flight is to get people to agree with your own hiring. Over and over.
Diego Faleck is a mediator, settlement counsel and dispute resolution processes designer, with a unique track record in highly complex cases. He is the founder of Faleck & Associados, a private firm focused on mediation and settlement strategies with a team of 130 full-time mediators.
His noted work includes designing and implementing compensation systems via mediation and facilitation due to major aircraft accidents (TAM, 2007; Air France, 2009) and environmental tragedies (Mariana, 2015; Brumadinho, 2019); and a preventive evacuation and compensation system for thousands of families due to subsidence claims (Maceió, 2020). For the past 10 years, he has been working with several of the largest national and international companies doing business in Brazil, as well as renowned law firms and leading names in the Brazilian business mediation market. He has acted on some of the most complex and highest-profile cases, including national and international cases related to reinsurance, construction, energy, telecoms, real estate, contracts, finance, judicial recovery and partnership disputes, and those involving major public companies.
He received his LLM from Harvard Law School and his PhD from the University of São Paulo. He has held significant government positions in antitrust and consumer protection matters. He is an adjunct professor at the Pepperdine University Caruso School of Law in Malibu, California. He co-leads the International Chamber of Commerce mediation task force in Brazil, and is a member of the CPR International Institute’s Brazilian advisory board, and the CAM-CCBC mediation commission. He has authored several national and international publications on dispute resolution, and is a frequent speaker at national and international colloquiums. He is IMI-certified.