Vitor Lopes, Villemor Amaral Advogados
Establishing a concept of mediation is not an easy task. This is because mediation is not viewed consistently by the various countries using it to resolve domestic conflicts.
As a result, depending on the view taken for this supplementary mechanism of conflict resolution, there will be a dissonance as to the enumeration of its core elements, the mediator’s performance, the description of its actual objectives, its informative sources – in short, an understanding of its basic structure, which will invariably give rise to an array of different concepts.
Such an array of concepts as to what constitutes this body of law has become another obstacle to the application of mediation in Brazil, inasmuch as it remains a little-used process nationally; the dogmatic imprecision around mediation only reinforces insecure and hesitant attitudes towards the potential of this process.
To overcome this obstacle, the opportunity has arisen to enumerate the various concepts set forth in international and national law, and to examine the various relevant opinions of jurists, in order to compare them with the definition that is most likely to be adopted by the Brazilian system, with the future approval of PLC 94/02.
This article intends to provide a comprehensive view of this process, allowing a better analysis of the options available to the Brazilian legislature for mediation to be applied in Brazil. This will be done by examining the various ways that mediation is understood around the world.
Article 2 of the Law of the Autonomous Community of the Canary Islands defines mediation as an:
out-of-court and voluntary procedure whereby a duly accredited third-party, called the mediator, informs, guides and assists, without decision-making powers, the members of a family in conflict, with the purpose of facilitating channels of dialogue, seeking fair, lasting, stable agreements in order to avoid filing of litigious lawsuits, or to end those already initiated or to reduce the scope thereof.
On the other hand, the Law of the Autonomous Community of Valenciana considers (family) mediation to be:
a voluntary procedure pursuing an out-of-court resolution of the conflicts arising in its midst, whereby one or more qualified, impartial professionals, without decision-making powers for the parties, assist the members of a family in conflict with the purpose of facilitating channels of dialogue, seeking a mutual agreement.
As an alternative, the (Family) Mediation Law of the Autonomous Community of Castilla y León defines it as:
the professional intervention carried out in the family conflicts provided for in this Law, by a qualified, neutral and impartial mediator, in order to create a communication channel between the parties in conflict that facilitates their non-litigious management of their issues.
The (Family) Mediation Law of the Autonomous Community of Madrid also includes a concept of mediation, by providing in article 1 that it constitutes a:
voluntary management procedure or positive resolution of family tensions or conflicts whereby the parties request and accept the intervention of an impartial professional, neutral mediator without decision-making powers, who assist the family with the purpose of facilitating communication channels, seeking mutual agreements.
The Uniform Mediation Act, designed to provide a uniform set of legal rules regarding mediation practices within the US, defines it as:
a process whereby the mediator facilitates communication and negotiation between the parties, assisting them to reach a voluntary agreement regarding their dispute.
Similarly, it should be pointed out that the preamble to the document prepared by the American Arbitration Association, the American Bar Association and the Association For Conflict Resolution, called “Model Standards of Conduct for Mediators”, argues that mediation is a process whereby an impartial third party facilitates communication and negotiation between the parties, thus enabling them to make a decision about their dispute.
Argentine Law No. 24.573 does not provide an express concept of this process. It only states briefly in article 1, in the chapter on general provisions, that mediation is a procedure whereby direct communication between the parties is promoted for the out-of-court resolution of disputes.
In the national context, the National Council for Mediation and Arbitration Institutions regulation does not set forth any provision as to the definition of mediation. Only in its introduction does it mention that mediation, according to this law, constitutes:
a non-adversarial and voluntary dispute settlement process whereby two or more persons, whether individuals or legal entities, seek to reach a consensual solution that makes it possible to preserve the relationship between them.
At the jurist level, Roberto A Bianchi defines mediation as an informal, voluntary and confidential procedure, conducted by an impartial third party, and accepted by the disputing parties, to facilitate dialogue and enable them to reach an agreement.
On the other hand, Bernal Samper states that mediation is the intervention in a dispute or negotiation of a competent and impartial third party, accepted by the other parties, without decision-making powers, and which assists the parties to reach an agreement voluntarily.
Lisa Parkinson, as an alternative, understands mediation as:
a process of cooperative resolution of conflict whereby two or more disputing parties are assisted by one or more impartial third-parties (the mediators) to communicate and reach voluntarily an agreement mutually acceptable regarding the issues in dispute.
At the national level, José Maria Rossani Garcez teaches that mediation, as a formula for the resolution of conflicts, arises when “an impartial third-party assists the parties to reach a voluntary agreement by means of a structured process”.
On the other hand, Maria de Nazareth Serpa understands mediation as “a process whereby and through which a third person acts in order to encourage and facilitate the resolution of a dispute without prescribing the solution.”
Accordingly, mediation can be understood as the process through which a third party, called a mediator, intervenes technically and impartially in the conflict or even in the existing relationship between the parties, so that they may be able to voluntarily reach a conciliation agreement.
Thus, without prejudice to the differences and similarities between the most varied concepts of mediation, as shown above, it is worth pointing out that it is possible to extract from these statements a common core, without which, in our view, one cannot even discuss such matters. These are the key elements of mediation: the parties; the mediator; the dispute; and the process.
It is worth noting that some Brazilian authors writing on this topic, such as Fernando Horta, consider the key elements of mediation to be the mediator; the dispute; and the intention to promote the agreement to end the litigation However, we tend to disagree with this view. This is because, in this hypothesis, it could not be said that there was mediation between the parties when the volitional intention of one party to achieve a mutually agreeable solution, capable of resolving a dispute, arises only during the course of the mediation process – or does not arise at all, as is often the case in compulsory mediation cases in the US and Argentina (specifically Buenos Aires). In fact there is a lack of perspective in this argument, since the ultimate intention to reach an agreement would be within the objectives, and not elements, of a mediation. Moreover, it would appear that verification of this intention-based element would, in practice, be difficult to obtain; this would only lead to further complications, which would contribute nothing to the development of this new approach to dispute resolution.
Having clarified this point, it is necessary to briefly explore those elements that are considered to be at the core of mediation as a concept.
As far as the parties are concerned, they are the subjects in dispute and they may use the mediation to resolve their conflict. Any natural or legal person can be a party to a mediation process.
The dispute consists of the need to satisfy a claim made to the other party, and not reciprocated, and which must be addressed by both parties.
The mediator is the disinterested third party who intervenes in the process of mediation in a technical and impartial manner, in order to foster dialogue between the parties and help them to reach mutual agreement on the dispute. The mediator’s function at this point resembles that of a catalyst. Its authority is limited to the process itself, not to the merits of the dispute.
This process demonstrates the technical and structured nature of the legal relationship between the parties during the course of the mediation – which, like the traditional system of dispute resolution, is designed to provide solutions for people in dispute.
In this respect, one can perceive the point of contact between mediation and the traditional system, which tends to promote local dispute resolution habits. Dispute resolution is marked by the traces of its unquestionable instrumentality, which gives rise to the emergence of a unified methodological vision that must prevail over procedural law. It is for this reason that mediation is currently linked to the branch of procedural science.
The various studies on mediation address its advantages over the judicial process. which are:
Mediation is much more likely to achieve a result that is equally, if not more, satisfactory than that obtained through the judicial process. The very structure of mediation values simplicity and informality, and favours a positive result.
As is well known, the judiciary generally encounters delays which mean it cannot offer the judicial provision in a timely manner to citizens who need it.
It should also be noted that the current procedural system – which is full of complex structures and rigid procedures that cannot easily adapt to the peculiarities of each conflict – only poses more difficulties in creating a truly effective and rapid judicial power.
As for costs, there are several factors in mediation’s favour. First, unlike the judicial process, the parties’ only expense, in principle, is the mediator’s fees.
In addition, depending on the type of mediation and the demands of the parties, there are no expenses related to lawyers’ fees, as their presence is not always mandatory.
There are further cost savings to be made when it is considered that disputes are generally solved much more quickly than in the traditional process.
The mediation process does not have a rigid procedure based on pre-established norms. Quite the opposite. Its structure and procedural rules come from the parties’ wishes, which facilitates the creation of a procedure tailored to each specific case. This eliminates the inconvenience of a single, standardised procedure that cannot be adapted to the specific parameters of of each conflict, as is the general case with judicial proceedings.
The absence of any conditions as to actions performed in the mediation facilitates a dialogue between parties; this means they can safely express their experiences and viewpoints with regard to the dispute, enabling a mutually advantageous agreement for both parties.
The mediator also tends to maintain a closer relationship with the parties than a judge might. This contributes to the relative informality of the process, and creates a more favourable environment in which to reach a consensual decision between the parties.
All information conveyed in a mediation is kept confidential. This facilitates trust between the parties and towards the mediator; enables the exchange of information; and establishes a negotiation-friendly environment.
This avoids the disclosure of facts and documents produced in mediation to third parties, which is a common instance in judicial proceedings (except, obviously, cases that are held in secret), and thereby ensures more privacy for the parties.
Secrecy around the details of the mediation, including the results thereof, contributes to a non-injurious outcome for one party that may otherwise, in the case of a judicial proceedings, be harmed by the formation of a legal precedent. In countries
where precedent is binding, as is often the case with common law countries, one can see how this feature of mediation may be of considerable importance to the parties.
Due to the wide scope of authority that parties hold in a mediation, and their ability to shape the process, it can be said that parties have extensive control over the rules of the mediation and its outcome.
The parties have the power to discuss and formulate the standards to be applied to their specific case. This allows them to develop their own perspectives on the dispute without being restricted by legal determinations.
The breadth of the parties’ capabilities in mediation is also evident in the fact that they can withdraw from the process at any time, thus ending the mediation. It is not necessary to give an explanation. This is obviously not the case in judicial proceedings, which are governed by the principle of inevitability.
Also, unlike the judicial process (and even arbitration), in mediation the resolution of the specific dispute does not rest in the hands of third parties; rather, it is the parties themselves who reserve the power to resolve the dispute.
In this sense, it can be said that mediation restores power to the parties – a power that has always been theirs, but which over time and with the intense use and development of the judicial process seems to have been somewhat neglected by those who attempt to resolve their own conflicts.
Because dispute resolution via mediation is directly controlled by the will of the parties, an agreement reached and fulfilled by them is a much better fit than a judicial decision or even an arbitral award, which is rendered by a third party with no direct involvement in the dispute.
This is evidenced by the fact that parties tend to be much more satisfied with the solution produced in these circumstances than with a solution
imposed by a third party. This greatly reduces the potential for non-compliant actions by either party.
Without question, the nature of mediation is interdisciplinary and very flexible, especially when compared to the judicial process. As such, it should be noted that it is a much more appropriate tool in catering for the parties’ interests. In reaching a decision that takes account of those interests, whatever they may be, mediation eliminates any deeper dispute between the parties in a more satisfactory manner than the judicial process. Mediation is much more apt to identify any possible tensions between the apparent dispute and the actual one; in addition, it does not rigidly attach the parties to the positions they may have initially contemplated, as usually occurs in the judicial process. This only confirms the enhanced capacity of mediation to offer a solution that is fully compatible with the parties’ underlying interests.
Mediation does not create a competitive environment; rather, it establishes a non-adversarial scenario between the parties and, to the fullest possible extent, facilitates an amicable relationship even after the emergence and treatment of their dispute. It is no wonder that mediation is said to be the most appropriate remedy for disputes arising in long-term professional relationships.
The informality and flexibility of mediation also enable a less hostile climate between the parties – inasmuch as it uses simpler language and better knowledge of their case, making them more inclined to establish a negotiation.
The techniques used by the mediator, unlike those used by lawyers and judges, aim to neutralise the dispute and stop it from escalating. This facilitates an environment that lacks any space for hostile confrontation between the parties.
From this point of view, then, it is cooperation that emerges as the principal maxim of mediation.