MEDIATOR¹

Tania Almeida

The Mediator is an impartial third party who, through a series of specific procedures, helps the parties to identify their conflicts and interests, and to jointly build alternative solutions, aiming at consensus and the realization of the agreement. The Mediator must proceed, in the performance of his/her functions, preserving ethical principles².

Facilitating this quality of negotiation, a Mediator expands skills and acquires the necessary knowledge for its practice, through specific training. Expert in systemic vision, communication and negotiation, a Mediator acts as a facilitator of dialogue between parties, identifying and deconstructing impasses of different natures. Taking care of a balanced treatment and participation, helping in the identification of common, complementary and divergent interests, and in the articulation of the tripod need, possibility and Law. Enabling voice and time for those involved, building negotiation agendas with positively redefined terms, inviting the parties to reflect and consequent expansion and negotiation of alternatives.

Its main instrument of intervention are the questions. The possibility of private interviews, the use of negotiation and communication tools, in addition to additional knowledge about the peculiarities of human relationships and the influence of networks of relevance and the stories of the disputes in negotiation, also make up its exercise.

Governed by ethical principles, it is based on impartiality, competence, confidentiality and diligence. Ethically prevented from disclosing the content of the Mediation, he cannot give testimony or act professionally in the case outside the scope of the Mediation, or even have any conflict of interest with the subject or with the parties.

Prevented from providing consultancy or professional services to the parties, the knowledge arising from their profession of origin can only be present through questions aimed at identifying the sufficiency of the participants' baggage of information, providing a quality decision-making power.

This impediment reduces the performance of a Mediator to this function and makes it necessary and essential the complementary performance of other professionals who can assist the parties with their opinions, especially lawyers. It is up to the Mediator to receive them, inform them about the nature of the process and recommend to the parties that they retain them as consultants and possible future formal drafters of the informal agreement produced in the Mediation, in the event of ratification.

The Mediator is responsible for identifying the need to consult other professionals / specialists who can contribute with their knowledge and practice in expanding information or deconstructing impasses, without, however, indicating them by name.

¹Text 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.

²Code of Ethics for Mediators established by the National Council of Mediation and Arbitration Institutions – CONIMA, 1997.