MEDIATION

Tania Almeida

A Mediation has become an important resource for Dispute Resolution in situations involving conflicts of interest allied to the need to negotiate them. It is a process aimed at enabling the people involved to be co-authors of the negotiation and resolution of their conflicts. It has, therefore, a wide field of action in social organizations, from business to family.

Composing the framework of ADR's (Alternative Dispute Resolutions), Mediation stands out from its peers, in the search for the genuineness of authorship in self-composition. Conceived as a process structured in stages, it aims to establish or re-establish dialogue between the parties, so that alternatives emerge from them and the choice of solutions.

Proposal to give voice and time to those who participate in it, provides for the negotiation of its procedures with the parties. Based on the autonomy of the parties' will, it has its beginning, course and end subject to it, presupposing with that, the availability of those involved, to review the position in which they find themselves. An instrument for the negotiation of interests, throughout its journey, it articulates the need of each one with the possibility of the other, provided that, within the limits of Ethics and Law. Predicted to be fast, informal and confidential, it works to reduce financial, emotional and time costs due to, in a short space of time, promoting the installation of a collaborative context instead of an adversarial one, making people see this the only possibility for self-composition. Enabling negotiations in any context capable of producing conflicts, it has enabled international negotiations on commercial, labor, community, environmental, health and family issues. Especially present in business negotiations and in organizations, it also performs functions in restricted criminal matters.

Possible to precede or succeed the judicial resolution, Mediation can also be installed in its course, acting as a complementary instrument, enabling relational changes and consequent dissolution of the dispute. With its end ritualized by the writing of an agreement that includes positive language and the parties' acquiescence to its terms and wording, it enables an emotional agenda that contemplates the acknowledgment of the error or an apology to also take place.

Due to their informal character, the agreements constructed in the Mediation must gain legal language and be forwarded for approval of whatever is necessary. The agreement to remain in disagreement and to elect the Judicial Resolution for the items not agreed upon are made viable in the Mediation, preserving the positivity of the choice of the negotiation forum and that of authorship.

* Text revisited in 2006, extracted from Almeida, T. – “Mediation: a contemporary instrument in the prevention, negotiation and resolution of disputes”. Free Theme presented at the XVII National Conference of Lawyers. OAB: Federal. Rio de Janeiro, August 1999.