2015

Mediation Law passed by Brazilian Congress

Congress has passed and the President has approved the first law on Mediation in Brazil.

To read an article on this development, click here

To read a translation of the new act, click here (This translation was provided by Alexandre Simões).

Paul Mason, (IMI Certified Mediator, IMI Brazil hub member, IMI Appraisals Committee member) commented on this development:

“On June 26, 2015 the President of Brazil approved a new Mediation Law (Law no. 13.140/2015) passed by the Congress, which will take effect in 180 days. This is the first complete law passed on Mediation in Brazil after prior bills languished in Congress, primarily over the controversy whether an attempt at mediation should be made obligatory in court cases or not, as it has been in some other countries such as Argentina.  

Actually, the Law deals with at least three different dispute resolution mechanisms – mediation of court cases (“Judicial Mediation”), mediation of cases outside the courts (“Extra-Judicial Mediation”), and Self-Resolution of the Dispute when One Party is a Legal Entity Governed by Public Law. Most provisions of the Law deal with Judicial Mediation and Self-Resolution of Disputes involving public entities. Since public entities play such a large role in the Brazilian economy and society, the express legal authorization for them to engage in mediation and/or self-resolution of disputes will be important. Depending on how it will be implemented, judicial mediation has the potential to play a role in helping to decongest the Brazilian court system of the almost 100 million cases simmering there now, many involving public entities.

The advent of this Law is a positive development, erasing the old argument that mediation should not be undertaken because it was not authorized by law. The range of disputes which may be mediated has expanded to include not only those involving so-called freely transferable (“disposable”) rights which are those that can be arbitrated under Brazil’s Arbitration Law, but also certain rights which can be negotiated but not arbitrated, such as environmental and family rights.  However, labor disputes may not be mediated under this Law; rather, they are left to the parallel Brazilian labor court system which is also clogged up with millions of cases.  

One other area of concern is that while the Mediation Law sets forth strict qualifications and requirements for Judicial Mediators, it does not do so for Extra-Judicial Mediators, leaving it to the marketplace and local ADR centers. Even so, this problem may present an opportunity for the IMI to play an important role in having available highly qualified IMI-certified Extra-Judicial Mediators”.

Posted by Laura Skillen in 2015, News, 0 comments