Vitor Lopes, Villemor Amaral Advogados
Any individual or corporation may be a party to a mediation proceeding. They only have to be capable of exercising their rights. This can be seen in article 7 in the Brazilian Code of Civil Procedure (“CPC”). In the event that either party is incapable or relatively incapable, they shall act with their assistants or be represented by their parents, guardians or curators, under the civil law (article 8, CPC).
The parties are the leading figures of the mediation proceeding. Therefore, they must attend the mediation sessions in person to tell their stories, their views, emotions and fears. They are the ones who decide whether or not to instate a mediation proceeding, with the consequent intervention by the mediator, and who decide on the particular aspects of the procedure.
At the end of the mediation proceeding, the parties are the ones who will decide whether or not to build a settlement agreement to solve the dispute. They are, therefore, the ones controlling the outcome.
Accordingly, it is of the essence to highlight the rights and respective duties of the parties to a mediation proceeding, so that they may grasp a precise notion of their performance in a procedure of that nature.
In respect of this, it is worth noting that the Brazilian mediation bill, as is the case with the enumeration of the mediator’s rights and duties – as shown below –, does not satisfactorily list the rights and duties of the parties, in contrast to the provisions contained in the mediation laws in force in the Autonomous Communities of Spain. To that effect, let us highlight the contents of articles 6 and 7 [of the applicable law in force] in the Autonomous Community of Castilla y León, as well as articles 9 and 10 [of the applicable law in force] in the Autonomous Community of Madrid.
In spite of this, no doubt we may infer, by delving into the bill and the very guiding principles of doctrine reviewed herein, some rights and duties of the parties, so as to enable better fitting their role into such modality of dispute resolution.
Hence, and based on such premises, these are the main rights of the parties: (a) the parties may jointly nominate a mediator for their case; (b) the parties may decide to, at any stage, no longer purse the mediation; (c) the parties are entitled that the information produced in the mediation is held confidential; (d) the parties are entitled to free mediation, when they are granted the benefit of free legal aid; (e) the parties are entitled to receive proper treatment and consideration from the mediator; and (f) the parties are entitled to have the details of the mediation, including the maximum cost, previously disclosed to them.
On the other hand, these are their main duties: (a) to attend the mediation sessions in person, where they may be assisted by a lawyer, should they so wish; (b) to act on a good-faith basis; (c) to pay the mediator fees; and (d) to abide by the provisions of the mediation contract.
Of course, that list is not exhaustive, and there are other rights and duties for the parties to a mediation proceeding. Likewise, new rights and duties may be accepted by the parties in the mediation contract, provided, of course, that it does not breach the essence of mediation.
Notwithstanding this, it is worth emphasising that the list of rights and duties of the parties as described above enables a better assessment of the performance of the mediation proceeding, thus making it more operational.
“The mediator acts as a catalyst for discussion of the positions hitherto maintained by the disputing parties, enabling changes in their perceptions of their respective viewpoints about the reasons that pushed them to that dispute.”
The primary character of any mediation is, no doubt, the mediator. As an impartial and neutral third party, the mediator has the duty of helping the parties solve their dispute, by drawing up an agreement freely adopted by them.
Therefore, the mediator must be able to assist the parties in identifying the issues surrounding their dispute, helping them, at that point, visualise clearly and precisely the issues that have caused the controversy.
In such a scenario, the mediator acts as a catalyst for discussion of the positions hitherto maintained by the disputing parties, enabling changes in their perceptions of their respective viewpoints about the reasons that pushed them to that dispute. What is more, the mediator, in this regard, has the role of minimising any animosity resulting from the difference of opinions about the dispute held by the parties.
This approach avoids polarisation of the parties, which is extremely desirable for the creation of an environment suitable for negotiation, insofar as it fosters the birth of a collaborative, rather than competitive, stance between the parties.
However, it is important to stress that, in order to complete this task, the mediator must still be able to eliminate any noise or flaw that occurs in the communication process set by the parties, relaying the information produced by them clearly and precisely. Usually, such flaws that arise in the communication process are due to emotional, informational or even linguistic factors. The mediator must pay attention to these, in order to, at the right time, identify such ambiguities and relay the information produced by either party in a faithful and accessible way to the other party.
Nevertheless, in completing this task, the mediator must be able to deliver the messages issued by the parties in an objective manner, neutral from any negative feeling.
It is the mediator’s job to conduct the entire mediation procedure from start to finish. He is the one who leads the development of the mediation process, according to the rules previously chosen by the parties. Handling the appropriate techniques, it is also the mediator who sets the course of the dialogues held by the parties, so that the mediation proceeding develops in a satisfactory way towards obtaining a consensual solution.
In the meantime, they must keep the parties in the real world, so as to prevent them getting attached to unreasonable or even unreal positions, often stimulated by misperceptions generated by them. When the mediator fails to pay attention to such occurrences, it is unlikely that the parties will be able to build a solution that will put an end to their dispute.
In view of that, we may see that the mediator, unlike the judge or the arbitrator, does not judge the claims of the parties, nor does he propose solutions to their problems. In point of fact, the mediator, with the use of appropriate techniques, only assists the parties to substitute a competitive and adversarial environment with a more collaborative and non-adversarial one. As a result, the necessary conditions for the setting of an effective negotiation process to be conducted by the parties are expected to emerge, directing the parties towards the construction of a joint solution that is capable of ending the dispute between them.
Regarding the figure of the lawyer in a mediation proceeding, it is worth noting that his role in this type of process can take place both as an attorney-at-law for one of the disputing parties, and as mediator, as seen hereinabove.
Whatever the role he is playing, it is essential that the lawyer keeps in mind that his performance in the exercise of mediation is entirely different from that which he normally delivers when practising law in legal actions.
Such a perception is of the utmost importance in a country such as Brazil, where the reality of legal practice is predominantly contentious, with a very incipient culture in terms of amicable dispute resolution mechanisms.
The root causes of this phenomenon are many and varuid. The absence in the syllabus of the country’s law schools of non-adversarial models of conflict resolution is only one of several reasons. However, such a state of affairs contributes greatly to setting the current mindset of lawyers, who, due to an absolute lack of knowledge about mediation and the techniques it employs, still have reservations about its development in Brazil.
Given this, it is important that the lawyer, in order to act as a mediator or even an attorney-at-law for either party, must seek to understand all the fundamentals of mediation, namely: its guiding principles, its procedure, and the rights and duties for serving as mediator. They also must appreciate the rights and duties of the disputing parties and their goals – in short, all the contours and the methodology of this method of dispute resolution. In doing so they would understand that mediation is a conflict resolution mechanism that is very different from that seen elsewhere in the jurisdiction and with which they are more familiar. If lawyers were to gain this understanding, it would go a long way towards removing the obstacles that exist today regarding mediation and its effective use.
A lawyer who is aware of the basics of mediation will, for example, be able to adapt more easily to the functions of mediator, which, in at least three aspects, differ – not to say that they are opposed to – from the law practice traditionally exercised in lawsuits.
In our opinion, there are three principles that lawyers should be most attentive to, when mediating conflicts: (a) the impartiality the mediator must have; (b) the use of techniques and methods that prioritise cooperation between the parties, thereby favoring the creation of a peaceful environment between them; and (c) the role of the parties in solving their own disputes.
These three principles are quite the opposite of the performance traditionally exercised in litigation in Brazil and therefore can be real pitfalls for practitioners. If not well observed, these will end up degrading the entire mediation proceeding, removing all the potential and legitimacy that mediation can offer in the search for the resolution of a dispute.
Strictly speaking, only the impartiality and the leading role of the parties in the solution of their disputes should, in fact, represent novel factors for the lawyer and their consequent adaptation.
Therefore, we may infer that, by order of express statutory provision, the lawyer should seek the resolution of disputes whenever possible, by employing non-adversarial dispute resolution techniques, thereby avoiding the filing of lawsuits.
Similarly, this is the view that should guide the performance of all activities carried out by the lawyer when acting in a mediation proceeding as an attorney-at-law, observing, as it should be, the leading role of the parties in solving their own disputes.
The result is a win-win situation, i.e., not only do individuals with conflicting interests gain, but also society as a whole. However, given the litigation culture existing in our society, this rule is simply not observed.
Distinct from the other members of the justice system, the judge is not directly involved in a mediation proceeding. Incidentally, since the position of attorney-at-law for either party is incompatible with the position of judge, the only role that a judge could occupy within a mediation proceeding would be that of a mediator.
But even this is practically impossible, in our opinion. The reason for this is that there is a logical incompatibility between the mediator and the position of judge, which expresses a form of statement of power consubstantiated in the jurisdiction.
Such representation of the exercise of power, or even its mere likelihood, is enough to taint the essence of mediation, which is grounded on absolute absence of imposed decision, values, opinions, suggestions or recommendations from a third party.
Were a mediation to be conducted by a judge, the parties would likely not express themselves freely and truly, hiding information that may be useful for the amicable dispute resolution, because of the fear they have, in the event that a settlement agreement is not reached at that time, that the mediating judge will decide the dispute unfavorably to their interests because of such information he was provided with during the mediation.
In addition, there is a clear likelihood of prejudgment of the dispute by the judge, which would do nothing but taint his performance during the legal action, which is obviously not desirable at all.
Furthermore, the mediator’s consubstantiated right to be paid the fees, as a result of his or her service as a mediator, is another insurmountable obstacle, as the judge, by virtue of the constitutional system in force, is expressly prevented from taking any office or function, even if available, except for teaching, as per the provisions of item I, sole paragraph, article 95 in the Federal Constitution, 1988.
Nevertheless, let us draw attention to the fact that the judge has an important role to play by encouraging mediation, and must, whenever possible, provide the disputing parties with appropriate information about the use of such amicable dispute resolution mechanism.
Therefore, every time the judge detects that the dispute he is analysing can be resolved in mediation, including by identifying that (a) the parties are really capable of finding an amicable solution for their dispute; (b) the costs incurred by the parties, by reason of using this mode of dispute resolution, are lower in comparison with the traditional lawsuit; and (c) the mediation will not overly delay the delivery of a solution for the case at issue, the judge must tell the parties so, definitely contributing to setting a culture of peace in our society.