A clipping was carried out prioritizing the articles dealing with Mediation, to access the complete New Code of Civil Procedure, Law No. 13.105.

 

LAW No. 13.105, OF MARCH 16, 2015.

GENERAL PART 

BOOK I

CIVIL PROCEDURAL RULES

SINGLE TITLE

FUNDAMENTAL RULES AND APPLICATION OF PROCEDURAL RULES

CHAPTER I

FUNDAMENTAL RULES OF CIVIL PROCEDURE

Art 1o The civil procedure will be ordered, disciplined and interpreted according to the values ​​and fundamental norms established in the Constitution of the Federative Republic of Brazil, observing the provisions of this Code.

Art 2o The process begins at the initiative of the party and is carried out by official impulse, except for the exceptions provided for by law.

Art 3o Threat or injury to law shall not be excluded from the judicial review.

§ 1o Arbitration is permitted, as provided by law.

§ 2o The State will promote, whenever possible, the consensual solution of conflicts.

§ 3o Conciliation, mediation and other methods of consensual conflict resolution should be encouraged by judges, lawyers, public defenders and members of the Public Ministry, including during the judicial process.

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Section V

Of the Conciliators and Judicial Mediators

Art. 165. The courts will create judicial centers for the consensual resolution of conflicts, responsible for holding conciliation and mediation sessions and hearings and for developing programs designed to assist, guide and encourage self-composition.

§ 1o The composition and organization of the centers will be defined by the respective court, observing the norms of the National Council of Justice.

§ 2o The conciliator, who will preferentially act in cases where there is no previous relationship between the parties, may suggest solutions to the dispute, being prohibited the use of any type of constraint or intimidation for the parties to conciliate.

§ 3o The mediator, who will preferentially act in cases where there is a previous link between the parties, will help interested parties to understand the issues and interests in conflict, so that they can, by reestablishing communication, identify, by themselves, consensual solutions that generate mutual benefits.

Art. 166. Conciliation and mediation are informed by the principles of independence, impartiality, autonomy of will, confidentiality, orality, informality and informed decision.

§ 1o Confidentiality extends to all information produced in the course of the procedure, the content of which may not be used for a purpose other than that provided for by the express resolution of the parties.

§ 2o Due to the duty of secrecy inherent to their functions, the conciliator and the mediator, as well as the members of their teams, may not disclose or testify about facts or elements arising from the conciliation or mediation.

§ 3o The application of negotiation techniques is allowed, with the objective of providing a favorable environment for self-composition.

§ 4o Mediation and conciliation will be governed by the free autonomy of the interested parties, including with regard to the definition of procedural rules.

Art. 167. Conciliators, mediators and private conciliation and mediation chambers will be registered in a national registry and in a registry of a federal court of justice or regional court, which will maintain a record of qualified professionals, indicating their professional area.

§ 1o Fulfilling the minimum qualification requirement, through a course carried out by an accredited entity, according to the curricular parameter defined by the National Council of Justice together with the Ministry of Justice, the conciliator or the mediator, with the respective certificate, may request their registration in the register national court and in the register of a federal court of law or regional court.

§ 2o Once the registration has been effected, which may be preceded by a public tender, the court will send the necessary data to the director of the judicial district, section or subsection where the conciliator or mediator will act so that his name will appear on the respective list, to be observed in alternating and random distribution, respecting the principle of equality within the same area of ​​professional activity.

§ 3o The accreditation of the chambers and the register of conciliators and mediators will contain all the relevant data for their performance, such as the number of processes in which they participated, the success or failure of the activity, the matter on which the controversy was concerned, as well as other data that the court deems relevant.

§ 4o The data collected in the form of § 3o will be systematically classified by the court, which will publish them, at least annually, for the public to know and for statistical purposes and for the assessment of conciliation, mediation, private conciliation and mediation chambers, conciliators and mediators.

§ 5o The conciliators and judicial mediators registered in the form of the caput, if lawyers, will be prevented from practicing law in the courts in which they perform their duties.

§ 6o The court may opt for the creation of its own panel of conciliators and mediators, to be filled by a public competition of evidence and titles, in compliance with the provisions of this Chapter.

Art. 168. The parties may choose, by mutual agreement, the conciliator, the mediator or the private conciliation and mediation chamber.

§ 1o The conciliator or mediator chosen by the parties may or may not be registered with the court.

§ 2o If there is no agreement as to the choice of mediator or conciliator, there will be distribution among those registered in the court registry, subject to the respective training.

§ 3o Whenever recommended, more than one mediator or conciliator will be appointed.

Art. 169. Except for the hypothesis of art. 167, § 6o, the conciliator and the mediator will receive remuneration for their work according to a table set by the court, according to parameters established by the National Council of Justice.

§ 1o Mediation and conciliation can be carried out on a voluntary basis, subject to the relevant legislation and court regulations.

§ 2o The courts will determine the percentage of unpaid hearings that must be supported by the private conciliation and mediation chambers, in order to attend to the processes in which justice is granted free of charge, in return for their accreditation.

Art. 170. In case of impediment, the conciliator or mediator will communicate it immediately, preferably by electronic means, and will return the records to the judge of the process or to the coordinator of the judicial center for conflict resolution, who must carry out a new distribution.

Single paragraph. If the cause of impediment is determined when the procedure has already started, the activity will be interrupted, drawing up minutes with a report of what happened and a request for distribution to a new conciliator or mediator.

Art. 171. In case of temporary impossibility of exercising the function, the conciliator or mediator will inform the center, preferably by electronic means, so that, during the period in which the impossibility persists, there are no new distributions

Art. 172. The conciliator and the mediator are prevented, for a period of 1 (one) year, counted from the end of the last hearing in which they acted, from advising, representing or sponsoring any of the parties.

Art. 173. Anyone who:

I – act with intent or guilt in conducting the conciliation or mediation under their responsibility or violating any of the duties arising from art. 166, §§ 1o e 2o;

II – act in a mediation or conciliation procedure, despite being impeded or suspected.

§ 1o The cases provided for in this article will be investigated in an administrative proceeding.

§ 2o The judge of the case or the coordinating judge of the conciliation and mediation center, if any, verifying inadequate performance of the mediator or conciliator, may remove him from his activities for up to 180 (one hundred and eighty) days, by reasoned decision, informing the fact immediately to the court to initiate the respective administrative proceeding.

Art. 174. The Union, the States, the Federal District and the Municipalities will create mediation and conciliation chambers, with attributions related to the consensual solution of conflicts in the administrative scope, such as:

I – settle conflicts involving public administration bodies and entities;

II – assess the admissibility of requests for conflict resolution, through conciliation, within the scope of the public administration;

III – promote, when applicable, the execution of a conduct adjustment term.

Art. 175. The provisions of this Section do not exclude other forms of extrajudicial conciliation and mediation linked to institutional bodies or carried out through independent professionals, which may be regulated by a specific law.

Single paragraph. The provisions of this Section apply, where applicable, to private conciliation and mediation chambers.

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Art. 250. The warrant that the bailiff must comply with will contain:

I – the names of the author and the person being cited and their respective domiciles or residences;

II – the purpose of the summons, with all the specifications contained in the initial petition, as well as the mention of the period to contest, under penalty of default, or to stay the execution;

III – application of sanction in case of non-compliance with the order, if any;

IV – if applicable, the summons to appear, accompanied by a lawyer or public defender, at the conciliation or mediation hearing, mentioning the day, time and place of the appearance;

V – a copy of the initial petition, order or decision granting provisional protection;

VI – the signature of the clerk or head of the secretariat and the declaration that he subscribes to it by order of the judge.

 

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CHAPTER II
PROCEDURE FOR EARLY GUARDIANSHIP REQUIRED IN A BACKGROUND CHARACTER

Art. 303. In cases where the urgency is contemporaneous with the filing of the action, the initial petition may be limited to the request for injunctive relief and to the indication of the request for final relief, with the exposition of the dispute, of the right that is sought to be fulfilled. and the danger of harm or risk to the useful result of the process.

§ 1o Granted the injunctive relief referred to in the caput of this article:

I – the author must add the initial petition, with the complementation of its arguments, the addition of new documents and the confirmation of the request for final protection, within 15 (fifteen) days or in another period longer than the judge determines;

II - the defendant will be summoned and summoned for the conciliation or mediation hearing in the form of art. 334;

III - if there is no self-composition, the deadline for contestation will be counted in the form of art. 335.

§ 2o The amendment referred to in item I of § 1 has not been carried outo of this article, the process will be extinguished without resolution of the merits.

§ 3o The amendment referred to in item I of § 1o of this article will take place in the same records, without the incidence of new procedural costs.

§ 4o In the initial petition referred to in the caput of this article, the author will have to indicate the value of the case, which must take into account the request for final protection.

§ 5o The author will also indicate in the initial petition that he intends to avail himself of the benefit provided for in the caput of this article.

§ 6o If it understands that there are no elements for granting early relief, the court will determine the amendment of the initial petition within 5 (five) days, under penalty of being rejected and the process being extinguished without resolution of merit.

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Art. 308. Once the injunction has been effected, the main request will have to be made by the plaintiff within 30 (thirty) days, in which case it will be presented in the same records in which the request for injunctive relief was deducted, not depending on the advance of new procedural costs.

§ 1o The main request can be made together with the request for injunctive relief.

§ 2o The cause of action may be added at the time of formulating the main application.

§ 3o Once the main request is presented, the parties will be summoned for the conciliation or mediation hearing, pursuant to art. 334, by their lawyers or in person, without the need for a new summons on the defendant.

§ 4o If there is no self-composition, the deadline for contestation will be counted in the form of art. 335.

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Section I
Initial Petition Requirements

Art. 319. The initial petition will indicate:

I – the court to which it is addressed;

II - the names, first names, marital status, existence of a stable union, profession, registration number in the Register of Individuals or in the National Register of Legal Entities, the electronic address, domicile and residence of the author and of the defendant;

III – the fact and the legal basis of the request;

IV – the order with its specifications;

V – the value of the claim;

VI – the evidence with which the author intends to demonstrate the truth of the alleged facts;

VII – the author's option for holding or not holding a conciliation or mediation hearing.

§ 1o If the information provided for in item II is not available, the plaintiff may, in the initial petition, request the judge to take the necessary steps to obtain it.

§ 2o The initial petition will not be rejected if, despite the lack of information referred to in item II, it is possible to summon the defendant.

§ 3o The initial petition will not be rejected for failure to comply with the provisions of item II of this article if obtaining such information makes access to justice impossible or excessively costly.

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CHAPTER V
CONCILIATION OR MEDIATION HEARING

Art. 334. If the initial petition fulfills the essential requirements and it is not the case that the request is dismissed, the judge will appoint a conciliation or mediation hearing at least 30 (thirty) days in advance, and the defendant must be summoned with at least 20 (twenty) days in advance.

§ 1o The conciliator or mediator, where applicable, will necessarily act in the conciliation or mediation hearing, observing the provisions of this Code, as well as the provisions of the law on judicial organization.

§ 2o There may be more than one session intended for conciliation and mediation, not exceeding 2 (two) months from the date of the first session, provided that they are necessary for the composition of the parties.

§ 3o The author's summons to the hearing will be made in the person of his lawyer.

§ 4o The hearing will not take place:

I – if both parties expressly express disinterest in the consensual composition;

II – when self-composition is not admitted.

§ 5o The plaintiff must indicate, in the initial petition, his disinterest in self-composition, and the defendant must do so, by petition, presented 10 (ten) days in advance, counting from the date of the hearing.

§ 6o If there is a joinder, the lack of interest in holding the hearing must be expressed by all joinders.

§ 7o The conciliation or mediation hearing may be held electronically, under the terms of the law.

§ 8o The unjustified non-attendance of the plaintiff or defendant to the conciliation hearing is considered an act that violates the dignity of justice and will be sanctioned with a fine of up to two percent of the intended economic advantage or value of the case, reverted in favor of the Union or the State.

§ 9o The parties must be accompanied by their lawyers or public defenders.

§ 10. The party may appoint a representative, by means of a specific power of attorney, with powers to negotiate and compromise.

§ 11. The self-composition obtained will be reduced to term and ratified by sentence.

§ 12. The agenda for conciliation or mediation hearings will be organized in such a way as to respect the minimum interval of 20 (twenty) minutes between the beginning of one and the beginning of the next.

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CHAPTER VI
CONTEST

Art. 335. The defendant may file a defense, by petition, within 15 (fifteen) days, whose initial term will be the date:

I – the conciliation or mediation hearing, or the last conciliation session, when any party does not appear or, when there is no self-composition;

II – the protocol of the request for cancellation of the conciliation or mediation hearing presented by the defendant, when the hypothesis of art. 334, § 4o, item I;

III - provided for in art. 231, according to the way in which the citation was made, in the other cases.

§ 1o In the case of passive joinder, in the event of art. 334, § 6o, the initial term provided for in item II will be, for each of the defendants, the date of submission of their respective request for cancellation of the hearing.

§ 2o When the hypothesis of art. 334, § 4o, item II, if there is a passive joinder and the plaintiff withdraws from the action in relation to a defendant not yet summoned, the deadline for response will run from the date of subpoena of the decision that ratifies the withdrawal.

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Art. 340. If there is an allegation of relative or absolute incompetence, the defense may be filed in the defendant's domicile court, a fact that will be immediately communicated to the judge of the case, preferably by electronic means.

§ 1o The defense will be submitted for free distribution or, if the defendant has been summoned by means of a rogatory letter, attached to the records of that letter, followed by its immediate remittance to the court of the case.

§ 2o Once the jurisdiction of the forum indicated by the defendant is recognized, the court to which the defense or the letter rogatory is distributed will be considered preventive.

§ 3o Alleged incompetence under the terms of the caput, the holding of the conciliation or mediation hearing will be suspended, if it has been designated.

§ 4o Once the competence has been defined, the competent court will designate a new date for the conciliation or mediation hearing.

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CHAPTER XI
INSTRUCTION AND JUDGMENT HEARING

Art. 358. On the day and at the appointed time, the judge will declare the hearing of instruction and judgment open and will order the parties and their respective lawyers to preach, as well as other persons who must participate in it.

Art. 359. Once the hearing is set up, the judge will try to conciliate the parties, regardless of the previous use of other methods of consensual conflict resolution, such as mediation and arbitration.

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Art. 565. In collective litigation for the possession of property, when the dispossession or disturbance stated in the initial petition has occurred more than a year and a day ago, the judge, before considering the request for granting the preliminary injunction, must designate a mediation hearing , to be carried out within 30 (thirty) days, which shall observe the provisions of §§ 2o e 4o.

§ 1o Once the preliminary injunction is granted, if it is not executed within a period of 1 (one) year, counting from the date of distribution, it will be up to the judge to designate a mediation hearing, pursuant to §§ 2o to 4o of this article.

§ 2o The Public Prosecutor's Office will be summoned to attend the hearing, and the Public Defender's Office will be summoned whenever there is a beneficiary of free justice.

§ 3o The judge may appear in the area that is the object of the dispute when his presence is necessary for the effectiveness of the judicial protection.

§ 4o The bodies responsible for the agrarian policy and urban policy of the Union, the State or the Federal District and the Municipality where the area object of the dispute is located may be summoned to the hearing, in order to express their interest in the process and the existence of the possibility of resolving the possessory conflict.

§ 5o The provisions of this article apply to litigation over property ownership.

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CHAPTER X
FAMILY ACTIONS

Art. 693. The norms of this Chapter apply to the litigation processes of divorce, separation, recognition and extinction of a stable union, custody, visitation and filiation.

Single paragraph. The action of maintenance and the one that deals with the interests of children or adolescents will observe the procedure provided for in specific legislation, applying, where applicable, the provisions of this Chapter.

Art. 694. In family actions, all efforts will be made for the consensual solution of the dispute, and the judge must have the help of professionals from other areas of knowledge for mediation and conciliation.

Single paragraph. At the request of the parties, the judge may order the suspension of the process while the litigants undergo extrajudicial mediation or multidisciplinary assistance.

Art. 695. Once the initial petition has been received and, if applicable, the measures relating to the provisional injunction have been taken, the judge will order the summons of the defendant to appear at the mediation and conciliation hearing, in compliance with the provisions of art. 694.

§ 1o The writ of summons will contain only the data necessary for the hearing and must be unaccompanied by a copy of the initial petition, ensuring the defendant the right to examine its content at any time.

§ 2o The summons will take place at least 15 (fifteen) days prior to the date designated for the hearing.

§ 3o The summons will be served on the defendant.

§ 4o At the hearing, the parties must be accompanied by their lawyers or public defenders.

Art. 696. The mediation and conciliation hearing may be divided into as many sessions as are necessary to enable the consensual solution, without prejudice to judicial measures to avoid the loss of the right.

Art. 697. If the agreement is not carried out, the rules of the common procedure will apply, in compliance with art. 335.

Art. 698. In family actions, the Public Prosecutor's Office will only intervene when there is an interest of the incapable and must be heard prior to the approval of the agreement.

Art. 699. When the process involves discussion about a fact related to abuse or parental alienation, the judge, when taking the testimony of the incapable person, must be accompanied by a specialist.

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