Brazilian Legislation regarding Conflict Mediation

Brazilian Legislation regarding Conflict Mediation

Gabriela Assmar
Lawyer; Master in Comparative Jurisprudence from New York University (LLMCJ); MBA in Business Management from Fundação Dom Cabral (FDC); Mediator at the Harlem Mediation Center (Harlem Mediation Center, NY, US). She worked in the organization of the Mediation Project of the NGO Viva Rio. She has extensive experience in Business Law and in various types of negotiation.

 

The purpose of this document is to be a quick reference source to the main concepts and legal diplomas applicable to the activity of the mediator in Brazil, not intending to be exhaustive in relation to the matter.

The references in BOLD, ALL CAPS AND ITALIC draw attention to the main concepts internationally adopted in Conflict Mediation.

 

1. INTRODUCTION: CONCEPTS

1.1 CONFLICT – Disagreement between two or more people on a topic of common interest. O CONFLICT appears before the Difficulty dealing with differences in relationships and dialogues, associated with a feeling of impossibility of the coexistence of interests, needs and points of view.

1.2 MEDIATION OF CONFLICTS - Process NOT ADVERSARIAL,CONFIDENTIAL and VOLUNTEER in which a third NEUTRAL facilitates negotiation between two or more parties and assists in the construction of mutually satisfactory agreements. The process is geared towards keep with the parties the authorship of the decisions.

The expression “Conflict Mediation” is as old and comprehensive as human conflicts, and has been applied, in a generic way, as a synonym for heterocomposition, that is: whenever a third party, foreign to the conflict, is called to pacify the parties involved. . There is also a method specific of conflict resolution that is conventionally called “conflict mediation”. Thus, we must first distinguish the “mediation genre” from the “mediation species”.

The “mediation genre”, or heterocomposition, ranges from imposing methods of conflict resolution (such as the judicial route and arbitration), to “friendly” methods (such as conciliation and mediation itself).

For a better understanding of the different levels of external influence of this third party in the relationship between the parties, the following comparative scale (from the most to the least intrusive) of the basic methods of conflict resolution is suitable:

• Judicial route:the judge applies the law to the dispute. He decides and imposes his decision on the parties. Once the judiciary is activated, the parties do not have any control over the solution;
• Arbitration:the arbitrator decides and imposes his decision on the parties, within the scope of the question before him. The process is more flexible (adaptable to the case) than in the judiciary, and the parties choose the arbitrator by mutual agreement. Once the scope of the arbitration has been defined and jurisdiction has been delegated, the parties do not have any control over the decision;
• Conciliation:the conciliator guides the parties in the analysis of their legal rights and duties, seeking an agreement. The parties decide the terms of the agreement, but the conciliator can make suggestions and give an opinion on the merits of the matter. The purpose of conciliation is the deal;
• Mediation:the mediator facilitates the dialogue between the parties, in an environment of confidentiality. The mediator seeks the understanding of the parties, by the parties themselves. He shall not opine on the merits of the matter, and even when he makes suggestions (at the request of the parties) he shall do so in a non-biased manner. The parties must perceive themselves as co-authors of the solution. The purpose of mediation is the pacification of the parties (both to resolve current conflicts and to avoid future conflicts, seeking to preserve relationships and authorship of solutions); and
• Negotiation:the parties talk directly, without the presence of third parties, seeking an agreement.

 

An interesting classification by the International Chamber of Commerce in Paris (“ICC”) distinguished the use of the acronym “ADR” between “Alternative dispute resolution”, which brings together all forms of alternative dispute resolution to the judicial route (negotiation, mediation, arbitration and their numerous mixtures), and “Amicable Dispute Resolution”, which excludes the refereeing of the first cast, as it is imposing and unfriendly.

 

1.2.a) Enforcement methods X friendly methods of conflict resolution:

Our tax methods decision-making authority is attributed to the third “mediator” (judge, arbitrator, family head, religious or local politician, etc.). He is called upon to examine the facts and arguments of the parties and decide in accordance with the applicable procedural and/or substantive rules. The degree of discretion delegated to the "mediator" for the preparation of the solution to the dispute can vary a lot, but, in any of the cases, this means that the parties lose, totally or partially, the control of the decisions that will affect their lives. And as the "mediator", most of the time, did not witness the facts that led to the conflict, even if he seeks impartiality, he will have as subsidies for the formation of his conviction the interpretations of the facts that are presented to him.

From there, some conclusions jump to the eye: (1) in the presentation of their arguments to the “mediator with decision-making power”, each party will be concerned to emphasize only the points that benefit them; (2) the other party will move from the supporting role, which it had at the time the conflict arose (whatever the nature of the conflict), to the role of adversary; (3) if the conflict arose from a divergence of views and/or difficulty in mutual understanding (which occurs in most cases), the resolution process tends to further distance the parties' points of view, generate grievances and distrust, and increase the likelihood of new conflicts; (4) the personal relationships involved in the conflict will come out of it even more shaken; (5) even the “winning” party in the imposed decision loses the potential fruits of a healthy relationship with the other party; (6) everyone misses out on the chance to communicate directly, learn about each other, and use this new information to mature their perceptions along the way.

Os “friendly” methods can be so qualified by presupposing theVOLUNTEERING (the process only lasts as long as both wish), theGOOD FAITH and the TRANSACTIONAL ANIMUS of the parties. As these processes are voluntary, either party may, at any time, choose to use another method of conflict resolution that it deems more appropriate. Thus, none of the parties can be forced to continue negotiating, and, logically, will only remain as long as they believe that an agreement will bring them better results than the impositional ways. Only at the end of the process, after the conclusion of an agreement, if any, will the parties be bound by it. The contract law rules will apply to the agreement.

In these methods, the “mediator” has no decision-making power as to the merits of the solution to be adopted. He is called upon to facilitate communications, leading the flow of information, so that the parties mutually convince each other and jointly decide the best solution for the case. The “mediator” may or may not be called upon to present suggestions and opinions, and thus will have a greater or lesser influence on the parties' conviction.

The only type of “finalist” decision that inevitably falls on the “mediator” is regarding procedural assumptions. If the “mediator” finds that any of the parties is present not of their own volition, but because they have suffered some type of coercion, or that they are there only to delay an effective decision, or even with the aim of obtaining information and using it against the other party at another time, it will be the ethical duty of the “mediator” to ensure the integrity of the process and the parties, and thus close the process advising the parties to seek a more appropriate procedure. Obviously the limits of this conviction are very subtle and each entity specialized in mediation, conciliation or in the hybrid types of friendly heterocomposition must submit its affiliates to a relevant code of ethics. 

1.2.b) The “kind” Mediation

Mediation itself, which we refer to as a “species” of the “genre”, consists of a friendly method of conflict resolution, with peculiar procedural characteristics, despite keeping a great degree of flexibility that allows it to adapt to the needs of the parties. case by case.

The presuppositions of Mediation are: (i) that all parties are present of their own free will - VOLUNTEERING; (ii) to GOOD FAITH of the parties in the search for an agreement; (iii) that the mediator be chosen consensually; (iv) that the mediator is NEUTRAL e IMPARTIAL; (v) that, by legal provision or by prior agreement between the parties and the mediator, it is possible to work inCONFIDENTIALITY whenever necessary; and (vi) that the resolution of the conflict does not depend on the assessment of evidence by a third “tie-breaker”. The premise of dealing with the dispute of available rights is more than a premise, since, obviously, the limits of Mediation are the same that the parties would face when negotiating directly.

Both fundamental characteristics of Mediation, which distinguish it from other friendly methods of conflict resolution, are: NEUTRALITY(the mediator DOES NOT JUDGE what is right or wrong and DOES NOT DECIDE on the best solution) and the obligation to CONFIDENTIALITY (or secrecy) to which the mediator is subject (which includes the possibility for the mediator to speak individually with each party maintaining the secrecy of the content of these conversations with the other parties).

The mediator must be chosen by mutual agreement by the parties and must remain neutral throughout the process, not judging or evaluating evidence and arguments of any kind. All parties involved must perceive the person of the mediator as dissociated from any interest or tendency in the dispute.[I] .

With the guarantee that the mediator will maintain confidentiality (even in relation to the other parties when speaking individually with one of them), confidential or strategic information can be brought to light; which would not occur in a direct negotiation due to distrust and fear that the other party could use such information for its own benefit or against the party that reveals it, especially in the event that negotiations fail and it is necessary to resort to arbitration or judicial proceedings.

Endowed with techniques developed to provide more efficient communication, the mediator must: (1) seek to hear from the parties as much information as possible, (2) purify from this information the effect of the emotions of those involved, which often distort their points of view, (3) distinguish placements (what the parties say they want each other) of real interests or basic values ​​(why want what they say they want), and (4) encourage the parties to develop a range of mutually beneficial options before settling on just one resolution option.

Given its assumptions, the Mediation process accumulates better conditions for the development of creative and mutually satisfactory solutions, for the following reasons:

(a) most disputes involve not only rights and duties regulated by law, but many other factors which the law cannot regulate and which are of great importance to the satisfaction of the parties. The mediator's broader investigation proposal takes into account these factors outside the legal system, which would not be observed by other conflict resolution methods;

(b) in the distinction between "what is asked" and "why is asked”, it is usually observed that the basic values ​​for the parties, those that really matter, can be achieved in many different ways, several of them being more easily accessible than those initially requested; and

(c) thanks to the confidentiality of the process, the mediator has access to information that would not be revealed otherwise.

If we compare the conflict solution to a “cake” and the elements that compose it (the information on which it is based) to “ingredients”, we can say that: the quantity and quality of the “ingredients” used in the “cake dough”, through the “preparation method” of Mediation, undergo greater “fermentation”. Thus, Mediation creates conditions for us not only to “slice” and distribute the “cake” fairly between the parties, but for us to have a larger “cake” and more “adapted to nutritional needs” to feed the parties.

The mediator must help the parties to listen to each other and communicate their points of view with greater efficiency and less emotional distress. Despite leading the flow of information that comes to light, the mediator must not only allow, but, through neutral (non-biased) questions, encourage each party to go through their own process of reflection, understanding and conclusion about the range of options available for the solution of the dispute.

When people perceive themselves as fundamentally contributing to the decision, they feel more committed to it. In this way, the solutions reached through this constructive interaction of all those involved are normally honored in a more lasting way. In addition, the learning of mutual understanding that the process offers tends to be carried forward, and if later changes in the scenario arise, the parties will be in a better position to understand each other directly in a healthier way. And they will always have the option to seek mediation again.  

 

2. THE LEGALITY OF CONFLICT MEDIATION IN BRAZIL:

As the NEUTRAL mediator (in addition to being impartial, don't decide) and the VOLUNTEER process, Mediation is nothing more than an ASSISTED NEGOTIATION.

Thus, where you can negotiate, you can mediate.

Where can you negotiate / mediate?

The Constitution of the Federative Republic of Brazil ("CF") contains in its preamble the guidelines of the Democratic State, where it establishes, to ensure the exercise of social and individual rights, freedom, security, well-being, development, equality and justice as supreme values ​​of a fraternal, pluralistic and unprejudiced society, founded on social harmony and committed, in the internal and international order, with the peaceful settlement of disputes. 

Although the CF assigns jurisdiction [ii] directly to the Judiciary and explicitly regulate exceptions to this rule (e.g. Senate can judge impeachment), there is no denying that several other situations of breach of the jurisdictional unity of the State are within the scope of legality. Thus, alternative dispute resolution methods to the judicial route, although not literally authorized, are in line with the constitutional premises of justice and social peace. [iii] .

For the implementation of methods taxes conflict resolution (in which the parties attribute to a third party the power to “say the law” applicable to them), the constitutional principle of legality (Article 5, II of the CF – below) requires express and prior legislative permission. The activities of the judiciary are fully regulated in our legal system and arbitration is regulated by Law 9.307/96.

Both Conciliation and Mediation, methods friendly conflict resolution, which can be understood as different aspects of the ASSISTED TRADING, which presuppose the VOLUNTEERING of the parties, did not require legal permission to be practiced.

With regard to friendly methods of conflict resolution, only their imposition, such as antecedent steps or incidents in the judicial process, requires legal provision.

The regulation of conciliation was necessary regarding the use of conciliatory procedures by judges (Laws 8.952/94 and 10.444/02, which amended articles 125 [iv] e 331 [v] of the Code of Civil Procedure) and to the imposition to expose the parties to its attempt prior to trials by the Special Civil and Criminal Courts (Law 9.099/95 [vi] ) and Labor Courts (Law 9.958/2000 [vii] ).

The uses of Mediation in Brazil must be leveraged by legal protection (mainly regarding: 1) inspection of the mediator's conduct, imposing parameters of neutrality; and 2) confidentiality of the process). However, despite the future enactment of specific regulations, as Mediation is a method that in no way restricts the transactional freedom of the parties (on the contrary, it stimulates it), is intrinsically allowed. The only legislation that restricts its scope is that applicable to negotiations and contracts in general.

It is noteworthy that the taxable persons of the contractual legislation are the contracting parties, and not third parties facilitate the agreement. In this context,where the parties are free to decide about their rights and duties, they are free to do so with the help of Mediation.

 

3. APPLICABLE LEGAL PROVISIONS:

3.1. federal Constitution

            Article 5, caput: Individual and collective rights and guarantees: to life, equality, liberty, security and property.

"Fundamental rights of the man-individual are those that recognize the autonomy of individuals, guaranteeing the initiative and independence of individuals vis-à-vis other members of political society and the State itself.” [viii]       

Equality – everyone is equal before the law. – MEDIATOR MUST BE CHOSEN CONSENSUALLY BY THE PARTIES.

Freedom Internal: free will: the decision between two opposing possibilities (eg to negotiate or not to negotiate) belongs exclusively to the individual's will / External: external expression of individual will -> implies the removal of obstacles or constraints. [ix] -VOLUNTARIITY

Article 5, II: Freedom of conscience and action – No one shall be obliged to do or refrain from doing anything except by virtue of lei.

"Freedom is therefore not the exception, it is the general rule, the absolute principle, the positive law; the prohibition, the restriction, these are the exceptions, and for that very reason they need to be proved…” [X] - VOLUNTEERING/ SCOPE RESTRICTED TO AVAILABLE RIGHTS.

Article 5, X: Right to intimacy, private life, honor and image of the people.

Intimacy – often considered synonymous with privacy.

Privacy – “the set of information about the individual that he can decide to keep under his exclusive control, or communicate, deciding to whom, when, where or under what conditions, without this being legally subject.” [xi]

From this right derives the constitutional protection to the professional secret, which “obliges those who practice a professionregulated [xii] , by reason of which he will have knowledge of another person's secret and keep it faithfully.” [xiii] - CONFIDENTIALITY/FITNESS FOR PRIVATE MEETINGS [xiv]

            Article 5, XIII: It is free to carry out any work, trade or profession, having met the professional qualifications established by law.” – FREE THE EXERCISE OF MEDIATION. 

            Art. 5, LIII: No one will be prosecuted or sentenced but by the competent authority, and in the enjoyment of guarantees of independence and impartiality. - NEUTRALITY OF THE MEDIATOR/INABILITY TO ASSESS EVIDENCE. 

            Art. 5, LIV: No one will be deprived of liberty or property without due legal process – NEUTRALITY OF THE MEDIATOR/INABILITY TO ASSESS EVIDENCE.  

            Art. 5, LV: Litigants, in judicial or administrative proceedings, and defendants in general are assured the adversary system and ample defense, with the means and resources inherent to it - ADVERSARIAL PROCESS x FRIENDLY, PEACEMAKING PROCESS

 

3.2 Civil Code 

O contract constitutes a kind of legal transaction, of a bilateral or plurilateral nature, depending, for its formation, on the meeting of the will of the parties, as it is a regulatory act of private interests. [xv]

3.2.1 Contract Validity Requirements:

Art. 104 of the Civil Code – The validity of the legal transaction requires:

I - capable agent;

II- lawful and possible, determined or determinable object;

III - prescribed or non-defense by law.

By capable agent it is understood: (i) existence of 2 or more persons, since the contract is a bilateral or plurilateral legal transaction; (ii) the general capacity of the parties to perform the acts of civil life [xvi] (if performed by incapable or relatively incapable, the acts will be null or voidable); (iii) specific ability to contract, ie, the object of the contract or the relationship of the parties does not fit in one of the cases in which the law limits the ability to contract [xvii] ; and (iv) absence of vice (error, intent, coercion, injury, state of danger, simulation or fraud) in the will of the contracting parties.

By lawful and possible, determined or determinable object, it is understood the obligation constituted, modified or extinguished by the contract, whose validity depends on: (i) being lawful and not contrary to morals, good customs and principles of public order [xviii] ; (ii) the physical or legal possibility of the object[xx] ; and (iii) the expression of necessary and sufficient elements to determine the object (genus, species, quantity). For the contract to be legally protected, the object must also be economically appreciable, ie, that it can be translated into financial terms.

A prescribed manner or not defense in law, according to Clóvis Beviláqua, is the set of formalities that must be observed for the declaration of will to have legal effect.

Currently, the rigor of form has given way to the prevalence of the parties' intention.the art. 107 of the Civil Code clarifies that: The validity of the declaration of will will not depend in a special way, except when the law expressly requires it.

Thus, unless specific legislation requires it [xx] , the contract can be: written (in private instrument or public deed) or oral (express or tacit[xxx] ).

3.2.2 Principles governing contractual law

3.2.2.1 Autonomy of the will (VOLUNTARY AND NEUTRALITY OF THE MEDIATOR) – Consists of the power of the parties to freely stipulate, by agreement of wills, the discipline of their interests and their respective legal protection. This autonomy also safeguards the option of not to hire.

The limit imposed on this freedom to contract is the social function of the contract. [xxiii], whereby the will of individuals is subordinated to collective interests. The obligations of probity andGOOD FAITH of all contractors [xxiii]

3.2.2.2 Consensualism – the simple agreement of 2 or more wills is enough to generate a valid contract [xxv]

3.2.2.3 and 3.2.2.4 Mandatory convention (pacta sunt servanda) – the contract establishes the law between the parties and any breach of the agreed obligations may be subject to patrimonial enforcement through state coercion. Only for fortuity ou force majeure [xxiv] a contractor may excuse himself from fulfilling his contractual obligations without the consent of the others.

The principle of mandatory convention is not absolute; it is limited by the principle of contractual balance (rebus sic stantibus) [xxv] , according to which, in the event of supervening imbalances, due to unforeseeable factors at the time of conclusion of the contract, the judiciary may review the obligations of both parties, seeking a new composition formula that restores them to the balance originally intended (the Code of Consumer Defense extends the possibility of reviewing the contract also for cases where there was no unpredictability and extraordinaryness).

It is worth mentioning that the contractual balance regulated by our Civil Code and based on several constitutional precepts only regulates the balance of obligations already contracted. This has nothing to do with the mediator's zeal for the balance of forces of the parties during the mediated negotiations. 

3.2.2.5 The relativity of the effects of the contractual legal business – the contract is solely and exclusively binding on the parties that have agreed to it, ie, it has no effect vis-à-vis third parties unless the law so determines or the third party agrees (VOLUNTEERING).

3.2.2.6 Da GOOD FAITH objective – in the interpretation of the contract, the good faith of the contracting parties is assumed. [xxviii]

3.2.3 Pre-contractual Law

A contract is legally existent only once a certain offer by one party has been accepted by the other.

Negotiations that precede a contract (whether in direct negotiation, conciliation or in mediation) are nothing more, before the law, than surveys, studies, reflections of the parties on proposals not yet accepted. This pre-contractual phase therefore generates neither rights nor obligations.

Even if partial agreements are drawn up during the negotiations, they will only be binding on the parties once the entire logical framework of the transaction has been agreed upon by the parties.

However, despite the lack of mandatory preliminary understandings, it may non-contractual civil liability. If one of the parties incurs expenses or fails to contract with third parties, reasonably (GOOD FAITH), as a result of such a course of business, and the other party unjustifiably or arbitrarily withdraws from the business, the latter shall reimburse the damages. [xxviii]

3.2.3.1 Preliminary Agreement [xxix]

A different situation occurs with preliminary contracts, where the parties “contract to contract”, creating for themselves the obligation to conclude a definitive contract (obligation to do). An example is the Promise to Buy and Sell.

3.3 Procedural Law

For the effective realization of material rights, Brazilian Procedural Law is organized around 3 forms of conflict resolution: self-protection (or self-defense = imposition, by force, of one will over another), self-composition (= direct or assisted negotiation ) and heterocomposition (= through the intervention of a third party, to which the parties are bound). There are authors who understand that the mediation of conflicts falls within the forms of autocomposition, as the third party assisting the negotiation does not have decision-making power [xxx] , while others place it among the forms ofheterocomposition, simply because a third party takes on the role of intermediary between the parties [xxxii] .

The State's jurisdiction to settle conflicts that the parties have not been able to resolve on their own (heterocomposition regulated in our Civil Procedural Law) must be an activity secondary of state power. The primary role of the State in social pacification must be to encourage the self-composition of the parties, within reasonable parameters for life in society. The State must only intervene when the parties have not managed to reach a settlement directly. The Italian Conciliation Law dates from 1892. [xxxi]

Although the fundamental principles of procedural law (such as ample defense, the adversary system, due process of law, isonomy, etc.) ”, already understand that both Conciliation and Mediation have a strong procedural impact and represent the quintessence of the adversary, since they improve communication between the parties, so that they effectively understand each other. [xxxii]  

The Multi-Door System, which is already beginning to be practiced in Brazil, is an example that the State recognizes that its peacemaking task needs to adapt to the current stage of social development.  

Keeping in mind that in the extrajudicial field, conflict mediation does not require express authorization by law to be practiced, until the Mediation Law enters into force, which for now is still being processed in the National Congress, what can be said about the insertion of conflict mediation in the judicial context?

There are two hypotheses that our CPC provides for assisted negotiation for the peaceful resolution of conflicts in the judicial process:

(i) the judge, himself, works as a conciliator or appoints an assistant to do so (articles 331 and 447 et seq. of the CPC [xxxv] ) – It is worth mentioning here that, although the judge or his assistant may use conflict mediation instruments in these procedural opportunities, they lack the characteristics ofNEUTRALITY AND CONFIDENTIALITY, without which the nature of mediation is fatally impaired.

(ii) the parties may request the suspension of the process, for a maximum period of 6 months, for out of court settlements (art. 265, II, c/c § 3 of the CPC[xxxiv] ). It is worth noting that, according to Brazilian legislation, any extrajudicial agreement, signed by the parties, in the presence of 2 witnesses, becomes an extrajudicial enforceable instrument (art. 585, II of the CPC [xxxiv] ), whether before, during or after a court case.

3.4 Consumer Protection Code

Article 4, III and V of Law No. 8.078/90 (CDC) [xxxviii] establishes as a national consumption policy the encouragement of alternative means of resolving consumer disputes.

3.5 Labor Law

As an attempt to prevent the filing of Collective Bargains, in the context of the Real Plan, the State itself was concerned to provide, in the space of free negotiation of the parties, mediation as support for the balance of forces between them. [xxxviii] 

[I] In order for them to trust the mediator, to the point of revealing information necessary for a broad understanding of the conflict, it is essential that all parties perceive the mediator's neutrality and do not fear that he may judge them or use such information against them (or in favor of the Other part).

[ii] “Jurisdiction” is the composition of a conflict by a disinterested third party that represents the State and applies the legal system created within the State.

[iii] Minister Ellen Gracie, in a vote cast in the records of Foreign Judgment 5206-7 (Regimental Appeal), when analyzing the constitutionality of the Arbitration Law in Brazil (Law 9.307/96) in view of the constitutional guarantee that “the law does not will exclude from the Judiciary's assessment any injury or threat to law” (CF, art. 5, XXXV) concluded that: “As can be seen, the citizen can invoke the judiciary, for the solution of conflicts, but it is not prohibited to use other dispute settlement mechanisms. The State, on the other hand, cannot remove from the jurisdictional control the divergences that citizens want to submit to it.”   

[iv] Article 125 of CPC. The judge will direct the process in accordance with the provisions of this Code, being responsible for:

I – ensure equal treatment to the parties;

II – ensure the quick resolution of the dispute;

III – prevent or repress any act contrary to the dignity of Justice;

IV – attempt, at any time, to reconcile the parties. (Item added by Law No. 8.952, of 13.12.1994)

[v] Article 331 of the CPC. If any of the cases provided for in the preceding sections does not occur, and the case deals with rights that allow a transaction, the judge will appoint a preliminary hearing, to be held within 30 (thirty) days, for which the parties will be summoned to appear, being able to be represented by a proxy or agent, with powers to compromise. (Wording given by Law No. 10.444, of 7.5.2002)

Previous wording: If none of the cases provided for in the preceding sections is verified and the case concerns available rights, the judge will appoint a conciliation hearing, to be held within a maximum period of 30 (thirty) days, to which the parties or their attorneys must appear, enabled to transact. (Amended by Law No. 8.952 of 13.12.1994)

• 1oOnce the conciliation is obtained, it will be reduced to term and ratified by sentence. (Paragraph added by Law No. 8.952, of 13.12.1994)
• 2oIf, for any reason, conciliation is not obtained, the judge will fix the disputed points, decide the pending procedural issues and determine the evidence to be produced, appointing an investigation and trial hearing, if necessary. (Paragraph added by Law No. 8.952, of 13.12.1994)
• 3oIf the right in dispute does not admit a transaction, or if the circumstances of the case show that it is unlikely to be obtained, the judge may, immediately, clean up the process and order the production of evidence, under the terms of § 2osystem. (Paragraph added by Law No. 10.444, of 7.5.2002)

 

[vi] Article 2 of Law 9.099 / 95 – The process will be guided by the criteria of orality, simplicity, informality, procedural economy and speed, seeking, whenever possible, conciliation or transaction.

…Art. 7. Lay conciliators and judges are assistants of Justice, recruited, the former, preferably, among law graduates, and the latter, among lawyers with more than five years of experience.

…Art. 21. Once the session is open, the judge or lay judge will clarify the parties present on the advantages of conciliation, showing them the risks and consequences of the dispute, especially regarding the provisions of § 3 of art. 3 of this Law.

Art. 22. The conciliation will be carried out by the judge or layman or by a conciliator under his guidance.

Single paragraph. Once the conciliation is obtained, it will be reduced to writing and ratified by the judge togado, by means of a sentence with the effectiveness of an enforceable title.

Art. 23. If the defendant does not appear, the judge will issue a sentence.

Art. 24. If conciliation is not obtained, the parties may, by mutual agreement, opt for arbitration, as provided for in this Law.

…Art. 41. The decision, except for the ratification of conciliation or arbitration award, may be appealed to the Court itself.

…Art. 60. The Special Criminal Court, provided by judges and lay judges, is competent for conciliation, judgment and execution of criminal offenses of lesser offensive potential, respecting the rules of connection and continence. (Amended by Law No. 11.313 of 2006)

…Art. 73. Conciliation will be conducted by the Judge or by a conciliator under his guidance.

Single paragraph. The conciliators are assistants of Justice, recruited, in the form of the local law, preferably among bachelors in Law, excluding those who exercise functions in the administration of Criminal Justice.

[vii] Law 9958 / 2000 changing Article 625-A of CLT -. Companies and unions can establish Prior Conciliation Commissions, of equal composition, with representatives of employees and employers, with the task of trying to reconcile individual conflicts at work.

Single paragraph. The commissions referred to in caput of this article may be constituted by groups of companies or have an inter-union nature.

…Change of Article 625-D of the CLT -  Any demand of a labor nature will be submitted to the Prior Conciliation Commission if, in the location where the services are provided, the Commission has been established within the scope of the company or the category union.

…§ twoo If the conciliation does not succeed, the employee and the employer will be provided with a statement of the failed conciliation attempt with the description of its object, signed by the members of the Commission, which must be attached to the eventual labor claim.

… Change of Article 625-E of the CLT -  Once the conciliation is accepted, a term signed by the employee, the employer or his agent and the members of the Commission will be drawn up, with a copy provided to the parties.

Single paragraph. The conciliation term is an extrajudicial enforceable title and will have general liberating effectiveness, except for the portions expressly excepted.

[viii] Jose Afonso da Silva, Course of positive constitutional law, RT, 1990, p.171

[ix] Idem, P. 205

[x] Pepper Bueno, Brazilian Public Law and Analysis of the Constitution of the Empire, Ministry of Justice/Documentation Service, 1958, p. 382.

[xi] J. Matos Pereira, Right of Information, Lisbon, Portuguese Association of Informatics, author's edition, 1980, p.15

[xii]   Lawyers and OAB Statute: Law 8.906/94

…Art. 7 - Direct from lawyers: …

II - have respected, in the name of freedom of defense and professional secrecy, the inviolability of their office or place of work, of their files and data, of their correspondence and of their communications, including by telephone or the like, except in the case of a search and seizure determined by the Magistrate and accompanied by a representative of the OAB….

XIX – refuse to testify as a witness in a process in which it worked or should work, or on a fact related to a person for whom it is or was a lawyer, even when authorized or requested by the constituent, as well as on a fact that constitutes professional secrecy.

Code of Medical Ethics - CFM Resolution No. 1.246/88

…Chapter IX – Medical Secrecy:

The doctor is prohibited from:

Art. 102 – Reveal a fact that he has knowledge of by virtue of the exercise of his profession, except for just cause, legal duty or express authorization from the patient.

Sole paragraph: This prohibition remains: a) Even if the fact is public knowledge or the patient has died. b) When giving testimony as a witness. In this case, the doctor will appear before the authority and declare his impediment.

Psychologist's Code of Professional Ethics – CFP Resolution No. 010/2005

…Art. 9th - It is the psychologist's duty to respect professional secrecy in order to protect, through confidentiality, the intimacy of people, groups or organizations, to which he has access in the professional exercise.

Art 10 - In situations in which there is a conflict between the requirements arising from the provisions of Article 9 and the statements of the fundamental principles of this Code, except in cases provided for by law, the psychologist may decide to breach confidentiality, basing his decision on the search for the less damage.

Single paragraph - In case of breach of confidentiality foreseen in the caput of this article, the psychologist must restrict himself to providing the strictly necessary information.

[xiii] Eduardo Novoa Monreal, Right to Private Life and Freedom of Information, 2nd ed., Mexico, Siglo Veintiuno Editores, 1981, p.80

[xiv] For the time being, the confidentiality of the mediation process is only guaranteed in Brazil if the mediator comes from a profession (lawyer, doctor, psychologist, etc.)

In the US, most states have specific legislation both to make the mediator immune from the obligation to testify in court, and to provide for exceptions to the confidentiality obligation (in the state of NY, for example, the mediator has an obligation to notify authorities if, in the course of process, becomes aware of life-threatening or child abuse). In the absence of specific legislation, consolidated jurisprudence guarantees the confidentiality of mediation (judges understand that without the guarantee of constitutionality, the mediator's own neutrality would be at risk), but even so, in the absence of specific legislation, it is customary to ask to the parties who previously sign an agreement, in which they undertake not to disclose the information, revealed in mediation, to any person outside the process.

[xv] Maria Helena Diniz, Brazilian Civil Law Course 3. Theory of Contractual and Extracontractual Obligations, Ed. Saraiva, 23rd ed, 2006, p.13, also citing Bassil Dower, Modern Civil Law Course, Nelpa, 1876, v. 3, p.6

[xvi] By exclusion, people who do not fit into the situations provided for in arts. 3rd and 4th of Civil Code – PERSONALITY AND ABILITY:

Art 1o Every person is capable of rights and duties in the civil order.

...Art 3o The following are absolutely incapable of personally exercising the acts of civil life: I – those under sixteen years of age; II - those who, due to illness or mental deficiency, do not have the necessary discernment to practice these acts; III - those who, even for transitory reasons, cannot express their will.

Art 4o They are incapable, in relation to certain acts, or the way in which they are performed: I – those over sixteen and under eighteen years of age; II – habitual drunkards, drug addicts, and those who, due to mental deficiency, have reduced discernment; III – the exceptional, without complete mental development; IV - the prodigals.

Single paragraph. The ability of the Indians will be governed by special legislation.

Art 5o Minority ends at the age of eighteen, when the person is qualified to practice all acts of civil life.

Single paragraph. The incapacity for minors shall cease: I - by the granting of the parents, or by one of them in the absence of the other, by means of a public instrument, regardless of judicial approval, or by a judgment of the judge, after hearing the guardian, if the minor is sixteen years of age complete; II - by marriage; III – for the exercise of effective public employment; IV – for graduation in a higher education course; V – by civil or commercial establishment, or by the existence of an employment relationship, provided that, as a result, the minor aged sixteen has his own economy.

[xvii] Example of specific capacity restrictions to contract:

Art. 496. The sale of ascendant to descendant is voidable, unless the other descendants and the spouse of the alienating person have expressly consented.

Single paragraph. In both cases, the consent of the spouse is waived if the property regime is that of mandatory separation.

Art. 497. Under penalty of nullity, the assets entrusted to their custody or administration cannot be purchased, even at public auction: I – by tutors, trustees, executors and administrators; II – by public servants, in general, the assets or rights of the legal entity they serve, or that are under their direct or indirect administration; III – by judges, court secretaries, arbitrators, experts and other clerks or assistants of justice, the assets or rights over which to litigate in court, court or council, in the place where they serve, or to which their authority extends; IV – by auctioneers and their agents, the goods whose sale they are in charge of.

Single paragraph. The prohibitions in this article extend to the assignment of credit.

[xviii] Example of invalid contracts by object: contracts that establish foreign currency as payment between two national parties; contracts that provide for the illegal exercise of a profession; contracts that exclude family rights protected by law, etc.

[xx] Example of impossible objects: sells land on Pluto; promise a mermaid to an aquarium; promise to swim across the Atlantic Ocean; living person inheritance; etc.

[xx] An example of a contract whose formality is essential to its validity is the purchase and sale of property, which can only be done by public deed (arts, 108, 215 and 166, IV of the CC).

[xxx] It is worth remembering that silence presupposes consent: Art. 111 of the Civil Code – . Silence requires consent, when circumstances or uses authorize it, and an express declaration of will is not necessary.

[xxiii] Article 421 of CC – “The freedom to contract will be exercised in reason and within the limits of the social function of the contract.” and CF, arts. 1st, IV, 5th, XXIII and 170, III).  

[xxiii] Article 422 of CC. Contractors are obliged to observe, both in the conclusion of the contract and in its execution, the principles of probity and good faith.

[xxv] See Art. 107 of CC.

[xxiv] Article 393 of CC – The debtor is not liable for damages resulting from unforeseeable circumstances or force majeure, if he is not expressly responsible for them.

Single paragraph. The fortuitous event or force majeure is verified in the necessary fact, whose effects it was not possible to avoid or prevent.

[xxv] Article 317 of CC. When, for unforeseeable reasons, there is a manifest disproportion between the value of the installment due and that at the time of its execution, the judge may correct it, at the request of the party, so as to ensure, as far as possible, the real value of the installment.

…Resolution for Excessive Onerosity

Art. 478. In contracts of continued or deferred performance, if the performance of one of the parties becomes excessively onerous, with extreme advantage for the other, due to extraordinary and unforeseeable events, the debtor may request the termination of the contract. The effects of the sentence that enacts it will retroact to the date of service.

Art. 479. The resolution can be avoided, by offering the defendant to equitably modify the conditions of the contract.

Art. 480. If in the contract the obligations fall to only one of the parties, it may request that its performance be reduced, or the way of performing it altered, in order to avoid excessive onerousness.

And Article 49 of CDC - The consumer can withdraw from the contract, within 7 days of signing or receiving the product or service, whenever the contract for the supply of products and services occurs outside the commercial establishment, especially by telephone or at home.

Single paragraph. If the consumer exercises the right of repentance provided for in this article, the amounts eventually paid, in any capacity, during the reflection period, will be returned, immediately, monetarily updated.

[xxviii]   Article 113 of CC – Legal transactions must be interpreted in accordance with the good faith and the uses of the place of its celebration.

… Art. 187. The holder of a right who, when exercising it, clearly exceeds the limits imposed by its economic or social purpose, by good faith or by good customs, also commits an illicit act.

… See also Art. 422, in note xxi above.

[xxviii] Article 186 of CC – Anyone who, by voluntary action or omission, negligence or recklessness, violates a right and causes harm to others, even if exclusively moral, commits an illicit act.

Art. 187. The holder of a right who, when exercising it, clearly exceeds the limits imposed by its economic or social purpose, by good faith or by good customs, also commits an illicit act.

…Art. 927. Anyone who, by unlawful act (arts. 186 and 187), causes damage to another, is obliged to repair it.

Single paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the author of the damage implies, by its nature, a risk to the rights of others.

[xxix] CC – From the Preliminary Agreement:

Art. 462. The preliminary contract, except as to the form, must contain all the essential requirements for the contract to be signed.

Art. 463. Once the preliminary contract has been concluded, in compliance with the provisions of the preceding article, and as long as it does not contain a repentance clause, either party will have the right to demand the execution of the definitive contract, signing a deadline for the other to make it effective.

Single paragraph. The preliminary contract must be taken to the competent registry.

Art. 464. Once the term has expired, the judge may, at the request of the interested party, fulfill the will of the defaulting party, conferring a definitive character on the preliminary contract, unless the nature of the obligation opposes this.

Art. 465. If the stipulating person does not execute the preliminary contract, the other party may consider it undone, and claim damages.

Art. 466. If the contract promise is unilateral, the creditor, under penalty of being ineffective, must manifest itself within the period provided for therein, or, in the absence of this, in what is reasonably signed by the debtor.

[xxx] André Gomma de Azevedo, Studies in Arbitration, Mediation and Negotiation, University of Brasilia Faculty of Law, Vol 2, p.153.

[xxxi] Humberto Dalla Bernardina de Pinho, Mediation: The rediscovery of an old ally in conflict resolution.

[xxxii] André Gomma de Azevedo, Cited Ob., pp. 158 and 159.

[xxxiii] Idem, pp. 163 and 164.

[xxxv] Art. 331 of the CPC: If any of the cases provided for in the preceding sections does not occur, and the case deals with rights that allow a transaction, the judge will designate a preliminary hearing, to be held within 30 (thirty) days, for which the parties summoned to appear, being able to be represented by an attorney or agent, with powers to compromise. (Wording given by Law No. 10.444, of 7.5.2002)

… Art. 447. When the dispute concerns property rights of a private nature, the judge, ex officio, will determine the presence of the parties at the beginning of the hearing of instruction and judgment.

Single paragraph. In cases relating to the family, conciliation will also take place, in cases and for the purposes in which the law allows the transaction.

Art. 448. Before starting the investigation, the judge will try to conciliate the parties. Upon reaching an agreement, the judge will order it to be terminated.

Art. 449. The conciliation term, signed by the parties and approved by the judge, will have the value of a sentence.

[xxxiv] Article 265 of CPC: The process is suspended:

 …II – by agreement of the parties;

…§ twoo The suspension of the process by agreement of the parties, dealt with ino Il, it can never exceed 6 (six) months; at the end of the term, the clerk will make the final case to the judge, who will order the proceeding of the process.

[xxxiv] Article 585 of the CPC. The following are extrajudicial executive titles: (Wording provided by Law No. 5.925, of 1)

…II – …the private document signed by the debtor and two witnesses; the transaction instrument endorsed by the Public Prosecutor's Office, the Public Defender's Office or by the lawyers of the transactors; (Wording provided by Law No. 8.953, of 13.12.1994)

1. [xxxviii] Article 4 of the CDC – The National Policy on Consumer Relations has the objective of meeting the needs of consumers, respecting their dignity, health and safety, protecting their economic interests, improving their quality of life, as well as such as the transfer and harmony of consumer relations, meeting the following principles: …
2. III - harmonization of the interests of the participants in consumer relations and making consumer protection compatible with the need for economic and technological development, in order to enable the principles on which the economic order is based (art. 170, of the Federal Constitution), always based on good faith and balance in the relationships between consumers and suppliers; ...

V – incentive for suppliers to create efficient means of controlling the quality and safety of products and services, as well as alternative mechanisms for resolving consumer disputes.

[xxxviii] Law 10.192 / 2001 – Art. 10. Salaries and other conditions related to work continue to be fixed and revised, on the respective annual base date, through free collective bargaining.

Art. 11. When the negotiation between the parties is frustrated, promoted directly or through a mediator, a collective bargaining action may be filed.

• 1oThe mediator will be appointed by mutual agreement by the parties or, at their request, by the Ministry of Labor and Employment, in accordance with the regulations referred to in § 5.oof this article.
• 2oThe party that considers itself without adequate conditions to, in a balanced situation, participate in the direct negotiation, may, from the outset, request the Ministry of Labor and Employment to appoint a mediator, who will convene the other party.
• 3oThe designated mediator will have a period of up to thirty days to complete the negotiation process, unless expressly agreed with the interested parties.
• 4oIf an understanding is not reached between the parties, or if any of them refuses to mediate, minutes will be drawn up containing the reasons for the conflict and the claims of an economic nature, a document that will instruct the representation for the filing of the collective bargaining agreement.
• 5oThe Executive Power shall regulate the provisions of this article.

↓

DECREE No. 1.572, OF JULY 28, 1995.

Regulates mediation in collective bargaining of a labor nature and makes other provisions.

THE PRESIDENT OF THE REPUBLIC, in the use of the powers conferred on him by art. 84, item IV and VI, of the Constitution,

DECREE:

Art. 1. Mediation in collective bargaining of a labor nature shall be exercised in accordance with the provisions of this Decree.

Art. 2. When the direct negotiation is frustrated, on the respective annual base date, the parties may choose, by mutual agreement, a mediator to settle the conflict.

• 1 If there is no choice in the form of the caput of this article, the parties may request, to the Ministry of Labor, the appointment of a mediator.

• 2 The party that considers itself without adequate conditions to, in a balanced situation, participate in direct negotiation, may, from the outset, request the Ministry of Labor to appoint a mediator.

• 3 The designation referred to in the previous paragraphs may fall into:

1. a) mediator previously registered under the terms of art. 4th provided that the parties agree on the payment of the fees proposed by him on the occasion of the appointment; or

1. b) civil servant of the Ministry of Labor, free of charge to the parties.

Art. 3. In the cases provided for in §§ 1 and 2 of the previous article, the appointment of the mediator will compete:

I – to the Regional Labor Delegate, in the case of negotiation at a local or regional level; or

II – to the Secretary of Labor Relations of the Ministry of Labor, in the event of a nationwide negotiation.

Art. 4 The Ministry of Labor will maintain a register of professionals for the exercise of the function of mediator to subsidize the choice by the parties.

• 1 The registration in the register will be made, upon request of the interested party, before the Regional Labor Office, provided that the applicant demonstrates:

1. a) proven experience in the settlement of labor disputes;

1. b) technical knowledge related to labor issues.

• 2º Once the requirements referred to in the previous paragraph have been fulfilled, it will be up to the Regional Labor Delegate to issue the competent declaratory act, which will be published in the Official Gazette of the Union.

• 3rd The accreditation will be valid for a period of three years from the date of its publication, the Regional Labor Delegate being entitled to cancel it, by means of a reasoned order.< p> § 4th The accreditation of active public servants is prohibited.

Art. 5 The designated mediator will have a maximum period of thirty days to complete the negotiation process, unless expressly agreed with the interested parties.

Single paragraph. In view of public order circumstances, the Regional Labor Delegate may request a reduction in the negotiation period.

Art. 6. If an understanding is not reached between the parties, in direct negotiation or through a mediator, minutes shall be drawn up immediately containing:

I – the motivating causes of the conflict;

II – claims of an economic nature.

Art. 7. The Minister of State for Labor will issue the necessary instructions to comply with the provisions of this Decree.

Art. 8 This Decree enters into force on the date of its publication.