REGULATION OF ETHICAL AND PROCEDURAL STANDARDS OF MEDIATION OF THE MEDIARE CHAMBER

The present Regulation of Ethical and Procedural Mediation Rules (“Regulation”) is mandatory in the Mediation procedures carried out in the MEDIARE Chamber – Dialogues (“Chamber”). The norms of the Code of Ethics of Mediators of the National Council of Mediation and Arbitration Institutions – CONIMA are complementary. Cases that have as part of the Public Administration may be regulated by other regulations.

 

I. The Institute of Mediation

I.1 Mediation is a voluntary, non-adversarial and flexible means of managing controversies, based on protagonism and co-authorship (“Mediation”). Its procedure is guided by commitments in good faith, reciprocal understanding and construction of solutions of mutual benefit and satisfaction, and is conducted by independent and independent third-party mediators. Freedom in the construction of alternatives to the controversy is based on the principle of autonomy of the will, respecting ethical principles and rules of public order.

I.2 Mediation may be submitted to conflicts involving available or unavailable rights that admit a transaction, involving two or more persons, whether physical or legal.

I.3 In the Chamber, the mediators will act in co-mediation, that is, in double, which, preferably, should have an interdisciplinary character. The conduct of the dialogue process will be guided by the competence and diligence, as well as by the impartiality and independence of the mediators in relation to mediandos and the mediated subject, being sure that the Mediation and the information generated in its course are confidential, with the possible stipulations in Contrary to mediators and legal exceptions, such as the provisions of article 31 of Law 13.140 / 2015 (Mediation Law), which allows mediandos to expressly waive the secrecy of private meetings.

I.4 The mediators shall ensure that there is balance of participation, sufficiency of information and co-decision making, and even suggest that mediators seek technical and legal information whenever necessary.

II. Mediation Request

II.1 Any capable individual or legal entity duly constituted and represented may petition the Chamber to institute a Mediation procedure. The request must be made to the Clerk of the Chamber, who will offer a Preliminary Information Form for Mediation, to be filled out by the interested parties or by a mediator in charge of the initial contact and ratified or rectified by the interested parties.

II.2 Preliminary information provided by the parties will be analyzed by a technical team, which will also conduct the pre-mediation session (“Presentation Session”), broadening the knowledge framework on the case and on Mediation. The resumes of the mobilized technical team will be available on the Chamber’s website.

III. Pre-mediation and Mediation procedure

III.1 A mediator who is a member of the Chamber will contact the requesting party by telephone in order to extend the preliminary information, identify the best way to invite the other parties and to schedule a briefing session (which may be more than one, As the parties decide and negotiate). The requesting party and the invited party shall attend the sessions and meetings in person, and when they are legal persons, they shall make themselves present through a representative (s) legally constituted for the Mediation with specific powers to participate and, when so desired, For deliberation. The Presentation Session will be conducted by a pair of mediators necessarily composed of at least 01 (one) mediator member of the Board of Mediators of the Chamber.

III.2 The Presentation Session and the Mediation meetings shall be held in a place offered by the Chamber or proposed by the mediators and agreed with the mediators with reasonable advance notice. Mediation meetings may be joint or private.

III.3 Provided there is a consensus, mediators may be accompanied by lawyers (or public defenders, as the case may be) and other technical advisers or persons of their confidence, who shall also be subject to a commitment to observe ethical, procedural and Established herein. If one of the parties is advised by a lawyer (or a public defender, as the case may be) and some other is not, the mediator will suspend the procedure until all of them are properly attended. If the imbalance concerns a technical adviser of another nature, the mediator may suspend the procedure until all parties are assisted by technical advisors.

III.4 Information on the guiding principles of the Mediation, its procedure and working methodology will be provided at the Presentation Session, clarifying any doubts. The people under mediation will be invited to offer a description of their perceptions about the facts and to share their expectations.

III.5 The mediators shall be chosen by the parties. If the parties choose to elect an external mediator, it will be necessary for the other mediator of the pair to be a member of the Panel of Mediators of the Chamber. The mediator (s) will observe the principles of specialty and interdisciplinarity, as well as the criteria that determine the complexity of the case (item IV.4). The internal mediators and the external mediators must sign a term of adhesion to this Regulation.

III.6 In the event that the persons under mediation wish to appoint an external mediator to the Board of Mediators of the Clearinghouse, they shall do so by consensus on this option and on the name chosen, submitting to the Board of Directors of the Clearinghouse the respective curriculum for ratification Or not the choice of the indicated external mediator.

III.7 The internal or external mediators of the Board of Mediators of the Chamber shall preliminarily analyze the case in order to identify its suitability for Mediation, the complexity level according to item IV.4 below and the convenience of eventual adjustments in the composition of the team.

III.8 Once defined by the persons under mediation and by the mediators to participate in the Mediation, each mediator shall submit to the secretary of the Chamber its respective Term of Independence and Impartiality and inform about any eventual fact that may generate doubt as to its participation in the Mediation. If a mediator does not agree to participate in Mediation, you must communicate this fact in writing, without any specific aspects.

III.9 In the case of the impediment or unavailability of any mediator to the pre-mediation phase or to the course of the Mediation procedure, its substitution will occur based on the same objective criteria that guided the original choice.

III.10 The activity of Mediation is very personal, which is why any non-compliance with ethical or procedural norms will be the sole and exclusive responsibility of the mediator. The responsibility of the Chamber shall be limited to the activities it carries out, which are restricted to secretarial support for the Mediation procedure.

III.11 Once the adequacy of the method to the case and the adhesion of the mediandos to the terms of the Proposal of Provision of Services sent by the Chamber have been confirmed, including the acceptance of the mediators indicated for the case, the Participation in Mediation Formalization will be formalized.

III.12 When mediation occurs during a judicial or arbitration proceeding, mediators should suggest to mediandos that they request the judge or arbitrator to suspend it for a sufficient period of time for the consensual solution of the controversy.

III.13 The mediators and the secretary of the Chamber shall not act as witnesses in an adversarial process that turns on the subject of the controversy submitted to Mediation.

III.14 The mediators shall ensure observance of the rules of secrecy (confidentiality) agreed in the Pre-Mediation and Mediation, except as determined by law[1].

III.15 Meetings recorded in minutes shall be made available to the parties through a consensual definition to this effect by the persons under mediation.

III.16    Any document presented in physical or electronic way during the course of the Mediation procedure must be affixed to the confidentiality card, and it will be returned after the end of the need or convenience of its use or display.

III.17 Except as otherwise agreed with the persons under mediation, the Chmaber´s office shall keep as documentation of the Mediation procedure, upon its closure or suspension, only an original copy of the Agreement, the Final Term, or the document that has registered Suspension, as the case may be.

IV. Costs

IV.1 The Board shall maintain a table of Registration Fee, Administration Fee and Mediators’ Fees, the terms of which may be periodically reviewed. Each Thematic Sector of the Chamber has its specifics and consequent Cost Table that will be shared with those interested in the Pre-mediation..

IV.2 Unless otherwise negotiated with the interested parties, the Registration Fee will be paid in the Pre-mediation phase, by the requesting party, against respective receipt. In the event of the adhesion of all those involved to Mediation by means of a joint signature of the Participation in Mediation, the parties will make definitive payment of the Registration Fee, against the issuance of the respective tax note (s) , According to the percentage of participation that they define by consensus, with the payment due within 5 (five) business days of the expedition in question.

IV.3 The Administration Fee shall be paid monthly by persons under mediation from and including the third hour of Pre-mediation, based on the initial assessment of complexity made from the Preliminary Information Form.

IV.4 The Mediators’ Fees shall be defined according to the complexity of the case identified on the basis of objective criteria, such as: number of parties directly and indirectly involved, time of controversy, escalation of conflict (historical, and intensity), degree Judicialization or arbitration, technical issues, and estimated amounts involved.

IV.5 Following the Presentation Session, proposals for Service Provision will be forwarded to the parties, with a view to the analysis and possible approval, which will include: (i) the suggestion of the pair of mediators, with their respective qualification; (Ii) the preliminary service schedule; And (iii) ratification or rectification of the Registration Fee and Administration Fee identified initially after completing the Preliminary Information Form, and the Fees (“Mediation Costs”) of the mediators.

IV.6 As well as the Registration Fee, the Administration Fee and the Mediators’ Fees will be due according to the percentage allocation that is defined by consensus between the parties. In case one of the parties is unable to pay the Administration Fee and / or the Mediators’ Fees, the other party may pay the respective amount in order to keep the Mediation procedure in progress. If no Mediation Costs are paid for at least 15 (fifteen) days after the respective due date, the Mediation may be suspended, and if such term reaches 30 (thirty) days, cumulative or not, the Mediation will automatically be considered Closed.

IV.7 For the purpose of calculating the Mediators’ Fees, the hours spent by the mediators in conducting joint and / or private meetings (regardless of the actual attendance of the mediator (s) at the scheduled meetings, except cancellation with 24 And four) hours in advance, considering the working days), as well as those dedicated to the eventual elaboration of minutes and minutes of agreement. The hours spent in answering phone calls or exchanging emails will be charged by consensual definition with people under mediation. In exceptional cases, remuneration may also be agreed for the hours spent in preparing for meetings or for reviewing their implementation.

IV.8 Fees relating to the Presentation Session (pre-mediation), if it is unique and lasting up to two hours, will not be charged. In the case of Mediation of a commercial or corporate nature, the hours spent in the Presentation Session will be charged whenever the controversy arises from a contract that contains a Mediation clause, or the persons under mediation formally agree to the acceptance of said collection in spite of the absence of such clause.

IV.9 The Mediators’ Fees shall, in general, be defined by the criterion of mediation time allocated by the parties. In exceptional cases and by agreement, the Fees for conducting the Mediation may be set at a fixed amount, or by the incidence of percentage on the estimated value of the controversy. Under no circumstances shall the stipulation of success rates for mediators be considered.

IV.10 Unless otherwise negotiated with the persons under mediation, in the event that the charge is paid per hour, the mediandos shall deposit, at least 48 (forty-eight) working hours in advance, the amounts corresponding to the estimated time Meeting (s), as well as any supplementary figures for previous meetings. The report of the workload will be sent monthly by the Clerk of the Chamber to the persons under mediation. Upon acceptance of the Mediation services proposal, mediators shall pay fees equivalent to a minimum workload of 5 (five) hours for cases of Mediation of low or medium complexity and 10 (ten) hours for cases of Mediation of high or very high complexity. If there is no attendance at the first Mediation meeting, such amount will be returned.

IV.11 If the meetings occur outside the municipality of Rio de Janeiro, they will be due for the transfer (door to door) of the mediators, amounts in the proportion of 50% (fifty percent) of the value of the hour of Fees, and the integral value Of expenses with transportation, lodging and food. The amount of these expenses will be anticipated by the persons mediated in each situation by means of an estimate presented by the Clerk’s office, and will be justified by the mediators upon presentation of the respective vouchers. Any adjustments, greater or lesser, will be made monthly by the persons under mediation based on balance sheet presented by the secretary of the Clearinghouse. In cases where the expenses include the taxable income, the respective tax burden will be added to the value of the expenses.

IV.12 In the case of fees in fixed amount or in percentage of the estimated value of the controversy, payment shall occur in number and periodicity of installments corresponding to the estimated duration of the Mediation as provided in the Mediation Participation Agreement, The first installment is not less than 50% (fifty) percent of the fixed amount or the estimated percentage of the controversy.

IV.13 Closing the Mediation for any reason, the Chamber´s office will be accountable to the mediandos, as provided in topic VII below.

V. Term of Participation in Mediation

V.1 The Mediation Participation Instrument shall contain, in accordance with the applicable legislation:

(i) full name, nationality, marital status, profession, identity number and body, registration with CPF / CNPJ, address with zip code, landline and cell phones, e-mail address and, in the case of a corporate name, Data of corporate qualification and identification of who will represent it in the Mediation according to the social contract, statute or power of attorney with specific powers to participate (and when desired, of deliberation) that will be presented;

(ii) full name, registration with the class organ, address with zip code, telephone and e-mail of legal advisers, technical advisors or other persons of trust;

(iii) full name, telephone and e-mail of the mediators who will act in the case;

(iv) the issues that motivate Mediation (and, when applicable, the delimitation of its duration and scope);

(v) the confirmation and possible reservations of the confidentiality commitment of the Mediation participants, including regarding the documents submitted, and the registration of the legal prohibition of the professionals involved in the Mediation acting as witness in a judicial or arbitral proceeding that is partial or Totally on the object of Mediation;

(vi) estimate number, frequency and duration of Mediation meetings;

(vii) the possibility of joint and / or private meetings;

(vii) the place and language of the Mediation;

(viii) whether the persons under mediation wish to receive a copy of the minutes;

(ix) other relevant information.

V.2 Sufficient time has elapsed i) to raise awareness of the people under mediation on the benefits of the ongoing Mediation (Facilitating Mediation), and ii) for the mediators to have constructed an accurate technical view of the case, and iii) Once the efforts for a consensual solution have been exhausted, the persons under mediation may, together and as provided in the Mediation Participation Form or in an addendum thereto, request from the mediators, in writing, a non-binding technical opinion on part of the controversy or on the whole of mediated matter (Evaluative Mediation), with a view to having this element to consider in their own conviction and decision making. The complexity of the matter selected for the non-binding opinion will determine respective financial amounts and deadlines for presentation, offered in a formal proposal to the persons under mediation for prior approval.

VI. Of Agreement Agreement in Mediation

VI.1 The agreements reached in Mediation may be total or partial, definitive or provisional, and must be transcribed in a language appropriate to the understanding of the persons under mediation and their advisors or persons of trust.

VI.2 In the case of partial agreements or interruption of the Mediation procedure, the mediator may assist persons under mediation to identify a method of dispute management that is appropriate to the remaining issues.

VI.3 If the agreement reached preliminarily is provisional, the mediandos and their advisors will decide on the period of validity and the date of return for evaluation and eventual adjustments.

VI.4 The Agreement in Mediation shall be signed by the mediators, persons under mediation and any advisors, in number of copies corresponding to the number of mediandos and mediators, plus one (01) way to be filed in the office of the Chamber.

VI.5 When the matter does not require homologation, persons under mediation may choose verbal agreements, or formalize the agreement as a contract or extrajudicial executive order, according to their own interest or the guidance of the advisors. In the event that it is not formalized as an extrajudicial enforceable title, the persons under mediation should be aware that the agreement can not be subject to a judicial (monitoring or enforcement) action.

VI.6 Caso os mediandos solicitem, ou a matéria demande, os acordos poderão ganhar linguagem jurídica, com a assistência dos assessores jurídicos, inclusive para fins de homologação judicial. Nestes casos, os mediadores devem, mediante solicitação, estar disponíveis para auxiliar a manter a fidelidade do texto original, conforme elaborado em conjunto com os mediandos e assessores.

VI.7 Os acordos poderão contemplar a possibilidade de supervisão de seu cumprimento.

VII. Closing – Final Mediation Term

VII.1 The Mediation shall be terminated by means of a Final Mediation Agreement concluded by reason of agreement, delay of payment higher than that tolerated in these Regulations, unilateral decision by any of the persons under mediation or unilateral decision by any of the mediators (if not Agreed to be replaced by another mediator).

VII.2    The partial or global agreement, definitive or transitory, and its content, may be included in the Final Term of Mediation.

VII.3 The Final Term of Mediation shall be signed in as many original channels as the number of persons under mediation and mediators, in addition to a route that shall be held by the secretary of the Chamber, which shall be closed by thirty-six ) Months and will be discarded subsequently.

VII.4 In the event that the mediators understand that the negotiation has become unproductive or if there is ethical motivation (in this case, the mediators will not decline the reasons) that makes it impossible to continue the Mediation, the Final Mediation Term shall only declare the closing of the Procedure and contain the signature or proof of science of the people under mediation.

VII.5 If any of the people under mediation decides to close the Mediation procedure, the Final Mediation Term shall contain the respective declaration of written will and the formal manifestation of science by the other parties, and any attempt by mediators to persuade them to continue Of the procedure.

VIII. Of the final provisions

VIII.1 For the purposes of research and statistical survey, the Chamber reserves the right to publish quantitative data (number of: accessions / non-accessions to the procedure, total / partial, provisional / definitive agreements, among other possibilities) and qualitative Relationship and restoration of the dialogue), with respect to the cases attended, being guarded the anonymity regarding the persons under mediation and advisers and the secrecy as to the merits of the issues treated.

VIII.2 The Regulation in force on the date of signature of the respective Participation in Mediation applies to the Mediation procedure. Any gaps in this Regulation may be filled by the mediators together with the persons under mediation, and must be validated by the Board of Directors of the Chamber.

VIII.3 The Chamber and the mediators shall have no responsibility for the terms of any settlement or otherwise termination of the Mediation, or of its suspension, which result from the deliberation, protagonism and co-authoring of the persons themselves through mediation.

VIII.4 The mediators are prevented from participating in or assisting in proceedings of any nature during the entire mediation procedure and for a period of twelve (12) months after the date of signature of the Final Mediation Agreement or the Agreement in Mediation, Related to the matter that was the object of the mediation procedure in question and involving any of the persons under mediation, except for the resumption of Mediation. After such term has elapsed, they may participate or advise in procedures involving any of the mediandos provided that such procedures have no direct or indirect correlation with the previously mediated controversy.

VIII.5 This Regulation shall enter into force on the date of its publication on the MEDIARE website and shall be registered in a Registry of Securities and Documents, and may be amended only with express and specific approval of the Board of Directors of the Board.

Rio de Janeiro, January 28, 2017.

 

Access the PDF on Regulamento 2017.

 

[1] Article 30 of Law 13.140 / 2015 (Mediation Law) provides that no information regarding the occurrence of a crime of public action is submitted to the confidentiality rule; Also emphasizes that confidentiality does not exclude from mediators, parties, agents and lawyers the duty to provide information to the tax administration at the end of the mediation.

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