There have never been any regulations in Brazil governing mediation, a process through which disputants seek the help of an impartial third party to resolve a conflict. Resolution is reached through communication between the parties involved.

Despite the lack of regulation, mediation is becoming widely used in Brazil. Its use is evident within various institutions, including the court system itself, since its essence is in the parties’ free statement of their wishes.

In light of this, the National Council of Justice has recently taken various measures to provide dispute resolution alternatives and establish regulations for mediation. It is doing this because the legislators believe these regulations are a way to support efforts to seek higher quality justice and a more peaceful society.

The Commission for the Constitution, Justice and Citizenship therefore recently approved the alternative to Bill 517/2011, from the Brazilian Senate. This bill governs mediation as an instrument for the consensual prevention and resolution of conflicts. It is currently awaiting approval by the Brazilian House of Representatives.

The main purpose of the bill is to establish court-supervised (mediators appointed by the courts) and out-of-court (mediators or a private mediation institution chosen by the parties) mediation for the resolution of all types of conflicts involving subject matter for which the law does not prohibit parties from negotiating. In other words, mediation is not a valid procedure for cases dealing with the determination of parentage, adoption, parental authority, invalidity of a marriage, disability, court-supervised reorganisation or bankruptcy. This is intended to decrease the pressure on the courts and is based on a cultural transformation: from litigation to dialogue.

Oct-Dec 2014 issue

Barretto Ferreira E Brancher (BKBG)