LAW No. 13.140, OF JUNE 26, 2015.
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Provides for mediation between individuals as a means of resolving disputes and on the self-composition of conflicts within the scope of public administration; amends Law no.o 9.469, of July 10, 1997, and Decree no.o 70.235, March 6, 1972; and repeals § 2o of art. 6o of Law no 9.469, of July 10, 1997. |
THE PRESIDENT OF THE REPUBLIC Let me know what the National Congress decrees and I sanction the following Law:
Art 1o This Law provides for mediation as a means of resolving disputes between individuals and for the self-settling of conflicts within the scope of public administration.
Single paragraph. Mediation is considered to be the technical activity performed by an impartial third party without decision-making power, which, chosen or accepted by the parties, helps and encourages them to identify or develop consensual solutions to the dispute.
CHAPTER I
MEDIATION
Section I
General Provisions
Art 2o Mediation will be guided by the following principles:
I – impartiality of the mediator;
II – isonomy between the parties;
III – orality;
IV – informality;
V – autonomy of the parties' will;
VI – search for consensus;
VII – confidentiality;
VIII - good faith.
§ 1o In the event that there is a contractual provision for a mediation clause, the parties must attend the first mediation meeting.
§ 2o No one will be obliged to remain in the mediation procedure.
Art 3o The conflict that concerns available rights or unavailable rights that admit transaction may be the object of mediation.
§ 1o Mediation can be about all or part of the conflict.
§ 2o The consensus of the parties involving unavailable, but negotiable rights, must be ratified in court, requiring the hearing of the Public Prosecutor's Office.
Section II
of the Mediators
Subsection I
Common Provisions
Art 4o The mediator will be appointed by the court or chosen by the parties.
§ 1o The mediator will conduct the communication procedure between the parties, seeking understanding and consensus and facilitating the resolution of the conflict.
§ 2o The needy will be guaranteed free mediation.
Art 5o The same legal hypotheses of impediment and suspicion of the judge apply to the mediator.
Single paragraph. The person appointed to act as a mediator has a duty to disclose to the parties, prior to accepting the role, any fact or circumstance that may give rise to justified doubt in relation to their impartiality to mediate the conflict, an opportunity in which it may be refused by either of them.
Art 6o The mediator is prevented, for a period of one year, counted from the end of the last hearing in which he/she acted, from advising, representing or sponsoring any of the parties.
Art 7o The mediator may not act as an arbitrator or act as a witness in judicial or arbitration proceedings relating to a conflict in which he has acted as a mediator.
Art 8o The mediator and all those who advise him in the mediation procedure, when in the exercise of their functions or because of them, are treated as a public servant, for the purposes of criminal legislation.
Subsection II
Extrajudicial Mediators
Art 9o Any capable person who has the confidence of the parties and is qualified to mediate can act as an extrajudicial mediator, regardless of being part of any type of council, class entity or association, or registering with it.
Art. 10. The parties may be assisted by lawyers or public defenders.
Single paragraph. If one of the parties is accompanied by a lawyer or public defender, the mediator will suspend the procedure until all parties are duly assisted.
Subsection III
Of the Judicial Mediators
Art. 11. A capable person who has graduated for at least two years in a higher education course at an institution recognized by the Ministry of Education and who has obtained training in a school or institution for training mediators, recognized by the National School of Education, may act as a judicial mediator. Training and Improvement of Magistrates – ENFAM or by the courts, observing the minimum requirements established by the National Council of Justice together with the Ministry of Justice.
Art. 12. The courts will create and maintain updated records of mediators qualified and authorized to act in judicial mediation.
§ 1o Enrollment in the registry of judicial mediators will be required by the interested party to the court with jurisdiction in the area in which he intends to exercise mediation.
§ 2o The courts will regulate the process of enrolling and terminating their mediators.
Art. 13. The remuneration due to judicial mediators will be fixed by the courts and paid for by the parties, subject to the provisions of § 2o of art. 4o of this Law.
Section III
Mediation Procedure
Subsection I
Common Provisions
Art. 14. At the beginning of the first mediation meeting, and whenever deemed necessary, the mediator must alert the parties about the confidentiality rules applicable to the procedure.
Art. 15. At the request of the parties or the mediator, and with their consent, other mediators may be admitted to work in the same procedure, when this is recommended due to the nature and complexity of the conflict.
Art. 16. Even if there is an arbitration or judicial process in progress, the parties may submit to mediation, in which case they will request the judge or arbitrator to suspend the process for a period sufficient for the consensual solution of the dispute.
§ 1o The decision that suspends the process in the terms required by mutual agreement by the parties is unappealable.
§ 2o Suspension of the proceedings does not preclude the granting of urgent measures by the judge or arbitrator.
Art. 17. Mediation is considered instituted on the date for which the first mediation meeting is scheduled.
Single paragraph. While the mediation procedure is ongoing, the statute of limitations will be suspended.
Art. 18. Once the mediation has started, subsequent meetings with the presence of the parties can only be scheduled with their consent.
Art. 19. In the performance of his/her function, the mediator may meet with the parties, jointly or separately, as well as request from the parties the information he deems necessary to facilitate understanding between them.
Art. 20. The mediation procedure will end with the drawing up of its final term, when an agreement is signed or when new efforts to obtain consensus are not justified, either by a declaration of the mediator to that effect or by manifestation of any of the parties.
Single paragraph. The final term of mediation, in the event of conclusion of an agreement, constitutes an extrajudicial enforcement order and, when judicially approved, a judicial enforcement order.
Subsection II
Extrajudicial Mediation
Art. 21. The invitation to start the extrajudicial mediation procedure may be made by any means of communication and must stipulate the proposed scope for negotiation, the date and place of the first meeting.
Single paragraph. The invitation made by one party to the other will be considered rejected if it is not answered within thirty days from the date of receipt.
Art. 22. The contractual provision for mediation must contain, at least:
I – minimum and maximum period for holding the first mediation meeting, counted from the date of receipt of the invitation;
II – location of the first mediation meeting;
III – criteria for choosing the mediator or mediation team;
IV – penalty in case of non-attendance of the invited party to the first mediation meeting.
§ 1o The contractual provision may replace the specification of the items listed above by the indication of a regulation, published by a reputable institution providing mediation services, which contains clear criteria for choosing the mediator and holding the first mediation meeting.
§ 2o If there is no complete contractual provision, the following criteria must be observed for holding the first mediation meeting:
I – minimum period of ten working days and maximum period of three months, counted from the receipt of the invitation;
II – suitable place for a meeting that may involve confidential information;
III – list of five names, contact information and professional references of qualified mediators; the invited party may expressly choose any of the five mediators and, if the invited party does not respond, the first name on the list will be considered accepted;
IV – the non-attendance of the invited party to the first mediation meeting will result in the assumption by the party of fifty percent of the costs and fees of the losing party in case it wins in a subsequent arbitration or judicial proceeding, which involves the scope of the mediation for which it was guest.
§ 3o In disputes arising from commercial or corporate contracts that do not contain a mediation clause, the extrajudicial mediator will only charge for their services if the parties decide to sign the initial mediation term and voluntarily remain in the mediation procedure.
Art. 23. If, in the contractual provision of a mediation clause, the parties undertake not to initiate arbitration proceedings or legal proceedings for a certain period or until the implementation of a certain condition, the arbitrator or judge shall suspend the course of the arbitration or action for the previously agreed period or until the implementation of this condition.
Single paragraph. The provisions of the caput do not apply to urgent measures in which access to the Judiciary is necessary to avoid the loss of rights.
Subsection III
Judicial Mediation
Art. 24. The courts will create judicial centers for the consensual resolution of conflicts, responsible for holding pre-procedural and procedural conciliation and mediation sessions and hearings, and for the development of programs designed to assist, guide and encourage self-composition.
Single paragraph. The composition and organization of the center will be defined by the respective court, observing the norms of the National Council of Justice.
Art. 25. In judicial mediation, the mediators will not be subject to the prior acceptance of the parties, subject to the provisions of art. 5o of this Law.
Art. 26. The parties must be assisted by lawyers or public defenders, except for the cases provided for in the laws noos 9.099 of September 26, 1995, and 10.259 of 12 July 2001.
Single paragraph. Those who prove insufficient resources will be guaranteed assistance by the Public Defender's Office.
Art. 27. If the initial petition fulfills the essential requirements and it is not the case that the request is dismissed, the judge will appoint a mediation hearing.
Art. 28. The judicial mediation procedure must be concluded within sixty days, counting from the first session, except when the parties, by mutual agreement, request its extension.
Single paragraph. If there is an agreement, the case records will be forwarded to the judge, who will determine the shelving of the case and, if requested by the parties, will ratify the agreement, by sentence, and the final term of the mediation and will determine the shelving of the case.
Art. 29. Once the conflict is resolved through mediation before the defendant is served, no final court costs will be due.
Section IV
Confidentiality and its Exceptions
Art. 30. Any and all information related to the mediation procedure will be confidential in relation to third parties, and may not be revealed even in arbitration or judicial proceedings unless the parties expressly decide otherwise or when its disclosure is required by law or necessary to compliance with the agreement reached by mediation.
§ 1o The duty of confidentiality applies to the mediator, the parties, their agents, lawyers, technical advisors and other people they trust who have, directly or indirectly, participated in the mediation procedure, reaching:
I – declaration, opinion, suggestion, promise or proposal made by one party to the other in the search for an understanding for the conflict;
II – acknowledgment of fact by any of the parties in the course of the mediation procedure;
III – expression of acceptance of the proposed agreement presented by the mediator;
IV – document prepared solely for the purposes of the mediation procedure.
§ 2o Evidence presented in disagreement with the provisions of this article will not be admitted in arbitration or judicial proceedings.
§ 3o Information relating to the occurrence of a crime of public action is not covered by the confidentiality rule.
§ 4o The confidentiality rule does not exclude the duty of the persons described in the caput to provide information to the tax administration after the final term of the mediation, applying to their servers the obligation to maintain the confidentiality of the information shared under the terms of the art. 198 of Lawo 5.172, of October 25, 1966 – National Tax Code.
Art. 31. The information provided by a party in a private session will be confidential, and the mediator cannot reveal it to the others, unless expressly authorized.
CHAPTER II
SELF-COMPOSITION OF CONFLICTS IN WHICH IT IS A PUBLIC LAW LEGAL PERSON
Section I
Common Provisions
Art. 32. The Union, the States, the Federal District and the Municipalities may create chambers for the prevention and administrative resolution of conflicts, within the scope of the respective bodies of Public Advocacy, where applicable, with competence to:
I – settle conflicts between public administration bodies and entities;
II – assess the admissibility of dispute resolution requests, through composition, in the case of a dispute between a private individual and a legal entity governed by public law;
III – promote, when applicable, the execution of a conduct adjustment term.
§ 1o The composition and functioning of the chambers mentioned in the caput will be established in the regulation of each federated entity.
§ 2o The submission of the conflict to the chambers mentioned in the caput is optional and will be applicable only in the cases provided for in the regulation of the respective federated entity.
§ 3o If there is consensus between the parties, the agreement will be reduced to term and will constitute an extrajudicial enforceable instrument.
§ 4o Disputes that can only be resolved by acts or granting of rights subject to authorization by the Legislative Power are not included in the competence of the bodies mentioned in the caput of this article.
§ 5o The competence of the chambers mentioned in the caput includes the prevention and resolution of conflicts that involve the economic and financial balance of contracts entered into by the administration with individuals.
Art. 33. While mediation chambers are not created, conflicts may be resolved in accordance with the mediation procedure provided for in Subsection I of Section III of Chapter I of this Law.
Single paragraph. The Public Attorney's Office of the Union, States, Federal District and Municipalities, where applicable, may institute, ex officio or upon provocation, a procedure for collective mediation of conflicts related to the provision of public services.
Art. 34. The establishment of an administrative procedure for the consensual resolution of conflict within the scope of public administration suspends the statute of limitations.
§ 1o The procedure is considered initiated when the public body or entity issues a judgment of admissibility, retroacting the suspension of prescription to the date of formalization of the request for consensual resolution of the conflict.
§ 2o In the case of tax matters, the suspension of the statute of limitations must comply with the provisions of Law # 5.172, 25, October 1966 – National Tax Code.
Section II
Conflicts Involving the Direct Federal Public Administration, its Municipalities and Foundations
Art. 35. Legal disputes involving the direct federal public administration, its autarchies and foundations may be subject to a transaction by adhesion, based on:
I – authorization from the Attorney General of the Union, based on the peaceful jurisprudence of the Federal Supreme Court or higher courts; or
II – opinion of the Attorney General of the Union, approved by the President of the Republic.
§ 1o The requirements and conditions of the adhesion transaction will be defined in a specific administrative resolution.
§ 2o When applying for membership, the interested party must attach proof of compliance with the requirements and conditions established in the administrative resolution.
§ 3o The administrative resolution will have general effects and will be applied to identical cases, timely enabled by means of a request for adhesion, even if it resolves only part of the dispute.
§ 4o The adhesion will imply waiver of the interested party of the right on which the action or appeal, possibly pending, of an administrative or judicial nature, with respect to the points comprised by the object of the administrative resolution, is based.
§ 5o If the interested party is a party to a judicial proceeding initiated by a collective action, the waiver of the right on which the action is based must be express, by means of a petition addressed to the judge in the case.
§ 6o The formalization of an administrative resolution aimed at the transaction by adhesion does not imply the tacit waiver of the statute of limitations or its interruption or suspension.
Art. 36. In the case of conflicts involving legal controversy between bodies or entities governed by public law that make up the federal public administration, the Attorney General's Office shall carry out an extrajudicial settlement of the conflict, observing the procedures provided for in an act of the Attorney General of the Unity.
§ 1o In the case of the caput, if there is no agreement as to the legal dispute, it will be up to the Attorney General of the Union to settle it, based on the relevant legislation.
§ 2o In cases in which the resolution of the dispute implies the recognition of the existence of credits of the Union, its agencies and foundations against legal entities governed by federal public law, the Attorney General's Office may request the Ministry of Planning, Budget and Management to budget adequacy to settle debts recognized as legitimate.
§ 3o The extrajudicial composition of the conflict does not exclude the determination of responsibility of the public agent that caused the debt, whenever it is verified that his action or omission constitutes, in theory, a disciplinary infraction.
§ 4o In cases where the subject matter of the dispute is being discussed in an administrative improbity action or there is a decision on it by the Federal Court of Auditors, the conciliation referred to in the caput will depend on the express consent of the judge in the case or the Reporting Justice.
Art. 37. The States, the Federal District and the Municipalities, their autarchies and public foundations, as well as public companies and federal mixed capital companies, are entitled to submit their disputes with agencies or entities of the federal public administration to the Attorney General's Office Union, for the purpose of extrajudicial settlement of the conflict.
Art. 38. In cases where the legal controversy is related to taxes administered by the Federal Revenue Service of Brazil or to credits registered in active debt of the Union:
I – the provisions of items II and III of the caput of art. 32;
II - public companies, mixed capital companies and their subsidiaries that explore economic activity of production or sale of goods or provision of services under a competitive regime cannot exercise the faculty provided for in art. 37;
III – when the persons referred to in the caput of art. 36:
a) the submission of the conflict to extrajudicial composition by the Attorney General's Office implies waiver of the right to appeal to the Administrative Council of Tax Appeals;
b) the reduction or cancellation of the credit will depend on a joint statement by the Attorney General of the Union and the Minister of State for Finance.
Single paragraph. The provisions of item II and subparagraph a of item III does not exclude the competence of the Attorney General of the Union provided for in the X items e XI of art. 4 of Complementary Law No. 73, of February 10, 1993.
Art. 39. The filing of a lawsuit in which bodies or entities governed by public law that form part of the federal public administration simultaneously appear in the active and passive poles must be previously authorized by the Attorney General of the Union.
Art. 40. Public servants and employees who participate in the process of extrajudicial settlement of the conflict may only be held civilly, administratively or criminally liable when, through intent or fraud, they receive any undue patrimonial advantage, allow or facilitate their reception by a third party, or for that to compete.
CHAPTER III
FINAL DISPOSITIONS
Art. 41. The National School of Mediation and Conciliation, within the scope of the Ministry of Justice, may create a database on good practices in mediation, as well as maintain a list of mediators and mediation institutions.
Art. 42. This Law applies, where applicable, to other consensual forms of conflict resolution, such as community and school mediations, and to those carried out in extrajudicial services, provided that they are within the scope of their competence.
Single paragraph. Mediation in labor relations will be regulated by its own law.
Art. 43. Public administration bodies and entities may create chambers for the resolution of conflicts between individuals, which deal with activities regulated or supervised by them.
Art. 44. Arts. 1o e 2o da Lawo 9.469 of 10 July 1997, passam to vigorar with following redação:
“Art. 1o The Attorney General of the Union, directly or through delegation, and the top managers of federal public companies, together with the statutory manager of the area concerned with the matter, may authorize the execution of agreements or transactions to prevent or terminate disputes, including judicial ones. .
§ 1o Specialized chambers, composed of public servants or permanent public employees, may be created with the objective of analyzing and formulating proposals for agreements or transactions.
§ 3o Regulation will provide for the form of composition of the chambers referred to in § 1o, which must have as a member at least one effective member of the Attorney General's Office or, in the case of public companies, a legal assistant or holder of an equivalent function.
§ 4o When the dispute involves amounts higher than those established in regulation, the agreement or transaction, under penalty of nullity, will depend on the prior and express authorization of the Attorney General of the Union and the Minister of State to whose area of competence the matter is affected, or the President of the Chamber of Deputies, the Federal Senate, the Federal Court of Auditors, the Court or Council, or the Attorney General of the Republic, in the case of interest to the bodies of the Legislative and Judiciary Powers or the Public Ministry of the Union, excluding non-dependent federal public companies, which will only need prior and express authorization from the directors mentioned in the caput.
§ 5o In the transaction or agreement entered into directly by the party or through an attorney-in-fact to extinguish or close legal proceedings, including cases of administrative extension of payments postulated in court, the parties may define the responsibility of each for the payment of the respective lawyers' fees." (NR)
“Art. 2o The Federal Attorney General, the Federal Attorney General, the Attorney General of the Central Bank of Brazil and the directors of the federal public companies mentioned in the caput of art. 1o may authorize, directly or through delegation, the execution of agreements to prevent or terminate, judicially or extrajudicially, litigation involving amounts lower than those established by regulation.
§ 1o In the case of federal public companies, the delegation is restricted to a formally constituted collegiate body, composed of at least one statutory officer.
§ 2o The agreement referred to in the caput may consist of the payment of the debt in monthly and successive installments, up to a maximum limit of sixty.
§ 3o The value of each monthly installment, upon payment, will be increased by interest equivalent to the reference rate of the Special System of Settlement and Custody - SELIC for federal securities, accumulated monthly, calculated from the month following the consolidation until the previous month payment and one percent for the month in which the payment is being made.
§ 4o In the event of default on any installment, after thirty days, the execution process will be initiated or will continue with the balance.” (NR)
Article 45. The decree noo 70.235, of March 6, 1972, becomes effective plus the following art. 14-A:
"Art. 14-A. In the case of determination and demand of tax credits of the Union whose taxable person is a public law body or entity of the federal public administration, the submission of the dispute to extrajudicial composition by the Federal Attorney General's Office is considered a complaint, for the purposes of the provisions of item III of art. 151 of Law no.o 5.172, of October 25, 1966 – National Tax Code.”
Art. 46. Mediation may be carried out over the internet or by another means of communication that allows the transaction at a distance, provided that the parties are in agreement.
Single paragraph. The party domiciled abroad is allowed to submit to mediation according to the rules established in this Law.
Art. 47. This Law enters into force after one hundred and eighty days have elapsed since its official publication.
Art. 48. The § 2o of art. 6o of Law no 9.469 of 10 July 1997.
Brasilia, June 26, 2015; 194o of Independence and 127o of the Republic.
DILMA ROUSSEFF
José Eduardo Cardozo
Joaquim Vieira Ferreira Levy
Nelson Barbosa
Luis Inácio Lucena Adams
This text does not replace the one published in the 29.6.2015 DOU
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