3.6.7 Alternative dispute resolution
Although the ordinary procedure provides for a conciliation or mediation hearing soon after the filing of the complaint (Article 334 of the CPC), a judge may adopt the use of alternative methods of conciliation at any time (Article 3 of the CPC). It is even possible to hold a conciliation phase before the procedure at the parties’ discretion. The agreement entered into, approved by a judge, has the effect of an instrument enforceable in court.
Mediation is governed by Law No. 13,140, of June 26, 2015,78 and consists of a technical activity exercised by an impartial third party without decision-making power who assists and encourages the parties to identify or develop mutually agreed solutions to the dispute. Mediation may be used in conflicts that involve waivable or unavailable rights that admit settlement.
The mediator is appointed by the court or chosen by the parties. A competent person, having graduated at least two years prior from a higher education course of an institution recognized by the Ministry of Education and who has been trained in a mediation school or institution recognized by the Brazilian National School for the Graduation and Development of Judges (Escola Nacional de Formação e Aperfeiçoamento de Magistrados) or by the courts, may act as a mediator, subject to the minimum requirements established by the National Council of Justice together with the Ministry of Justice (Article 11 of Law No. 13,140/15). The courts create and maintain updated registers of mediators who are qualified and authorized to act in court mediation (Article 12 of Law No. 13,140/15). The compensation paid to court mediators is set by the courts and borne by the parties (Article 13 of Law No. 13,140/15).
The law ensures the confidentiality of the procedure (Article 14 of Law No. 13,140/15). Additionally,
[a]ny and all information relating to the mediation procedure will be confidential with respect to third parties and may not be disclosed even in arbitration or court proceedings, unless the parties expressly decide otherwise or when its disclosure is required by law or necessary for compliance with the agreement reached by mediation.
Paragraph 1. The duty of confidentiality applies to the mediator, the parties, their representatives, lawyers, technical advisors and other persons of their confidence who have, directly or indirectly, participated in the mediation procedure, reaching:
I – statement, opinion, suggestion, promise, or proposal made by one party to the other in the search for an understanding on the conflict;
II – recognition of a fact by any of the parties during the mediation procedure;
III – statement of acceptance of a proposal for agreement presented by the mediator; [or]
IV – document prepared solely for the purposes of the mediation procedure.
Paragraph 2. The evidence presented in disagreement with these provisions will not be admitted in an arbitral or judicial proceedings. (Article 30 of Law No. 13,140/15)
The mediation procedure is closed with the drawing up of its final instrument, when an agreement is entered into or when new efforts to reach a mutual agreement are not justified, either by declaration of the mediator or by a statement of any of the parties (Article 20 of Law No. 13,140/15). The final instrument of mediation, in the event of an agreement, constitutes an instrument enforceable out of court and, when approved in court, becomes an instrument enforceable in court (Article 20(1) of Law No. 13,140/15).