Mediare Chamber´s Regulation on Ethical and Procedural Standards for Mediation

The present regulation regards the Ethical and Procedural standards for mediation and is of mandatory use during mediation practices carried out in the MEDIARE Chamber.

The CONIMA’s – Brazilian National Council of Mediation and Arbitration – code of ethics is used as complementary standard. However, cases in which the public administration stands as a part may be guided by other regulations.

 

I. About Mediation

I.1 Mediation is a non-binding and non-litigious form of Alternative Dispute Resolution (ADR), characterized by flexibility, and party autonomy (since it is controlled by the parties through actively participation). The procedure is guided by commitments of good faith, reciprocal understanding, mutual benefit and satisfaction solutions. The Mediator, responsible for conducting the procedure, is a neutral third person that helps the parties to reach a mutually satisfactory settlement of their dispute.

The freedom in building alternatives seeking conflict resolution (party autonomy) is based in the principle of self-determination, as well as on other ethical principles and rules of public order.

I.2 Mediation may encompass issues that regard both available and unavailable rights (if they admit transaction), involving two or more physical or legal persons.

I.3 In the MEDIARE Chamber is recommended that the Mediators act in co-mediation (in doubles), which, preferably, should have an interdisciplinary character. The Dialogue process will be conducted with competence and diligence, guided by the Mediator’s impartiality and independence in relation to the parties as well as by confidentiality regarding the whole process, with the proviso of legal exceptions (Article 31 of the Brazilian Mediation Law – Law. No 13.140/2015), which allows the parties to expressly waive the secrecy of private meetings.

I.4 Mediators shall ensure that there is balance of participation, sufficiency of information and co-decision making by suggesting the mediators to seek technical and legal information whenever is considered necessary.

II. Mediation Request

II.1 Every person – individual or legally constituted – may propose the establishment of a Mediation procedure and must do so, upon written request addressed to the Secretariat of the MEDIARE chamber, from which will present the Preliminary Information Form for Mediation, to be completed by the parties interested in participating or by the mediator in charged of this first contact; and ratified or rectified by the interested parties.

II.2 The preliminary information provided on the form, will be analyzed by a technical team, also responsible for conducting the pre-session meeting (“presentation session”), helping increase knowledge framework on the case.

The resumes of the mobilized technical teams are available on the Chamber’s website.

III. Pre-mediation and Mediation procedure

III.1 Once the Mediation request is admitted, the Secretariat of the MEDIARE Chamber shall contact the person who proposed the procedure aiming to increase preliminary information and identify the best way to contact and invite other possible participant(s) to the pre-mediation meeting(s). All participants shall be present on the sessions, and if there are legal entities involved, they shall be represented by their legal representative with specific deliberation powers vested in them. The presentation session shall be, preferably conducted by two mediators, with at least one of them being part of the MEDIARE Chamber`s mediators’ panel.

III.2 The participants, their representatives and lawyers (when existent) will participate in the pre-mediation and mediation meetings (joint meetings) which shall be held in a place offered by MEDIARE Chamber or by the parties, under approval of everyone involved in the procedure. The Mediator may also choose to conduct individual mediation meetings, where only one of the parties and their representatives and/or lawyers are present.

III.3 The parties may be assisted by lawyers, public defenders or any other technical assistance; all of which shall be subjected to the Chamber`s ethical, procedural and confidentiality standards. Nevertheless, if only one of the parties appears with his/her lawyer or public defender, the mediator may suspend the procedure, until all of them are duly assisted.

III.4 Pre-mediation meetings have an informative nature, since represents the moment when the parties are presented with the Mediation`s standards, the procedure and chamber’s work methodology. The parties are also invited to provide their own perception of the facts and share their expectations.

III.5 Once the pre-mediation meetings are completed, the MEDIARE chamber shall present a List of Mediators for the parties to appoint, jointly, the name of the professional they choose to carry out the proceeding. They are free to elect an external mediator, however, in this case, the other mediator shall belong to MEDIARE’s mediators’ panel. If the parties decide to rest the decision with the MEDIARE Chamber, the indication shall observe the specialty and interdisciplinary principles, as well as criteria that regard the case complexity (item IV.4). All mediators (internal or external) shall agree to follow the present act.

III.6 In case the parties prefer to appoint an external mediator, they shall to so, together, by submitting their curriculum to the MEDIARE Chamber Direction Board, for it to approve the decision.

III.7 The chosen mediators will analyze the case in order to identify its level of complexity (IV.4) and convenience regarding eventual necessary adjustments in the team’s composition.

III.8 With the confirmation regarding the participation, both Mediators and parties shall submit their Independence and Impartiality Term to the MEDIARE Chamber`s Secretariat and immediately inform any fact that may lead to doubt in this subject. An eventual refusal by any of the Mediators shall be informed by writing.

III.9 In case one of the mediators is prevented or unavailable during the whole procedure, its substitution will occur by electing a new name, based on the same objective criteria that guided the original choice.

III.10As Mediation activity is considered personal, an eventual infringement to the ethical standards and procedures will be the mediator`s responsibility. The Chamber`s responsibility shall be limited to the activities it carries out, which are restricted to secretarial support for the Mediation procedure.

III.11 Once mediation is confirmed as the ideal method to the presented case and the parties agree with the all the terms of the Service Proposal presented by the Chamber, the Mediation Participation Term shall be formalized.

III.12 In case the Mediation takes place during a legal or arbitration proceeding, the mediators shall suggest the parties to require the judge or arbitrator to suspend the referred proceedings during a period that is enough for the consensual controversial solution.

III.13 Neither the chamber’s secretariat nor the mediators can be called as witnesses in a future court proceeding regarding the same dispute object.

III.14 Mediators shall ensure the confidentiality rules present on pre-mediation and mediation, except as required by law. [1].

III.15 Minutes regarding the meetings shall be made available to the parties through a consensual agreement in this sense, given by the mediators.

III.16  All documents presented in the course of mediation procedure must be affixed as confidential and shall be returned once its use is no longer needed.

III.17 Unless otherwise agreed with the parties, the Chamber`s secretariat, will maintain, regarding the mediation procedure and after its end or suspension, only one original version of the following documents: Agreement Term, Final Term, or the document in which the suspension was registered.

IV. Expenses

IV.1 The Chamber shall maintain a table containing the Registration, Administration and Mediator’s fee, from which the terms may be periodically revised. Each one of the Chamber`s thematic sector has its specificity and consequently their own fee table which will be presented to the parties during pre-mediation. An indicative table is available on our website.

IV.2 Unless otherwise agreed with the parties or according to the Chamber’s liberality, the registration fee will be proportional to the complexity of the case – which will be analyzed during pre-mediation – and will be detailed on the Mediation Service Proposal. Parties shall come to an agreement regarding the Registration’s Fee fair apportionment, before mediation starts.

IV.3 The Administration fee shall be monthly paid by the parties, including the fee regarding the third hour concerning the pre-mediation session (when existent), taking in consideration all of the initial evaluation, complexity analysis.

 IV.4 The Mediator`s fees shall be set in accordance to the case complexity, which shall be defined by objective criteria, such as: number of parties involved (direct and indirectly), ongoing time of the dispute, level of conflict escalation (history and intensity), existence of judicial court or arbitration procedures, technical issues and values involved.

IV.5 After the presentation session (pre-mediation meeting), the parties will receive, to their analysis, a Mediation Service Proposal, which regards (i) indication of a pair of mediators and their qualifications; (ii) preliminary timetable agreements and (iii) costs – rectifying or ratifying previously presented fees considering the preliminary mediation form presented in the pre-mediation meeting.

IV.6 The Parties shall come to an agreement regarding the Registration, Administration and Mediator’s fee fair apportionment. In case one of the parties is unable of paying them, the other part may undertake payment in order to keep the Mediation procedure. If there is a fifteen-day absence of payment regarding any one of the mediation fees, the Mediation procedure may be suspended. If keeping the default after thirty days, the Mediation procedure will be ended.

IV.7 The Mediator`s fees will be based on the hours spent in conducting mediation sessions as well as in the preparation needed. Unless cancelation is notified with at least twenty-four-hour advance (considering working days), there will be charging for the scheduled meetings – Administration and mediator`s fee – even if there is a no-show of the parties. Hours spent answering phone calls and/or e-mails will also be charge under consensual definition with the parties. In exceptional cases, the compensation spent in meetings’ preparation and analysis may also be considered and agreed with the parties’ trough consensual deliberation.

IV.8 There are no fees regarding pre-mediation session, when this is unique and up to two hours long. However, in commercial or corporate nature mediations, the hours spent in the presentation session will be charged whenever the dispute arises from a contractual mediation clause, or when the parties formally agree with it, despite the absence of such clause.

IV.9 To the Mediator’s fees – which are usually defined by the criteria of mediation-hour assigned by the parties – may be set a fixed-value, through percentage incidence over the estimated value regarding the dispute, or other criteria, that shall always be previously adjusted with the parties.

IV.10 Unless otherwise agreed with the parties, on the occasion of the acceptance of the Service mediation proposal, and before the first mediation session, the parties shall undertake payment related to the registration and administration fees for an amount equivalent with a five hour workload (for mediation cases with low or medium complexity) or 10 hour workload (for cases with high complexity). In case there is a no-show on the first mediation meeting and the procedure gets discontinued, the amount regarding mediator’s fees will be returned. If the charging is hourly-based, the parties shall deposit within a minimum of forty-eight ours advance, the amounts regarding the estimated time for the meetings, as well as any complementary sums related to past meetings.

A working load report will be monthly sent to the parties, by the Chamber’s secretariat.

IV.11 For meetings occurring out of the city of Rio de Janeiro, there will be an increased value concerning the mediator’s travel time (door to door) under the proportion by fifty per cent of the negotiated fee, as well as, expenses costs regarding transportation, accommodation and food.

The amount concerning the expenses above mentioned will be presented by the chamber’s secretariat by means of an estimate and shall be anticipated by the parties every time traveling is needed, within a ten days advance period. The mediator’s will, then, justify the values by presenting the respective vouchers. However, any adjustments (for more or less) will be monthly made by the parties, based on the monthly report presented by the chamber’s secretariat.

In cases when the expenses involve a taxable income, the respective tax burden shall be added to the value of the expenses. The Chamber may also suggest a prior deposit in form of advance expenditure, which will also be taken in consideration on the monthly balance.

IV.12 Regardless if the fees concern a fixed-amount or a percentage over the estimated value of the dispute; payment shall occur in a quantity and periodicity of installments, which corresponds to the estimated duration of the procedure, provided in the Agreement to Participate in Mediation. The first installment shall correspond to no less than fifty per cent of the fixed-amount or over the estimated percentage of the dispute.

IV.13 Regardless of the reason why the procedure was ended, the Chamber´s office will be accountable to the parties, as provided below, in topic VII.

[1] Registration fee correspond to the Chamber’s costs regarding administrative services costs from the first contact until Term of participation in mediation is signed.

[2] The administration fee refers to expenses regarding infrastructure and administrative costs related to the case and shall me monthly paid, unless otherwise agreed with the parties.

 

V. Term of Participation in Mediation

V.1 The terms of participation in Mediation must contain:

(i) Complete identification and contact information of the participants and their representatives or lawyers, as appropriate;

(ii) Complete identification and information of the judicial and/or technical accessory, or third person, participating on the procedure with one of the parts;

(iii) The identification of the Mediators;

(iv) Confirmation and/ or reservations involving the participants’ compromise with the confidentiality principle (concerning the procedure – including formal documents) and with the legal seal related to the participants being called as witnesses in a future court or arbitration proceeding regarding the same dispute object.

(v) A brief indication of the matter that will be the subject of the Mediation;

(vi) The start date, provisional timetable and the possible closing date of the Mediation.

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

(viii) The place and the language to be used in the Mediation procedure;

(ix) If the parties are interested in receiving minutes and/ or an objective report regarding the meetings;

(x) The fees and forms of payment;

(xi) Eventual costs regarding specialized opinion (when necessary); and

(xii) Other information considered relevant.

 

V.2 When enough time has elapsed to: i) raise awareness of the benefits of the Mediation procedure (Facilitating Mediation) on the parties involved, ii) Mediators have constructed a technical vision over the case and; iii) all consensual solution options have been exhausted; The parties may, consensually and in accordance to the Term of participation in mediation, request the Mediators a non binding technical opinion about (all or part of) the dispute matter, which will add to their decision-making process.

This option may also be presented the Mediators, case in which they shall also present a formal proposal with all working costs and terms involved, based on the complexity of the selected matter.

 

VI. Mediation Agreement [1]

VI.1 Agreements achieved with mediation may be of total or partial solution and must be transcribed in a language, adapted to the parties’ best understanding.

VI.2 In case there is a partial agreement or an interruption on the Mediation proceeding, the Mediator shall assist the parties on finding another alternative dispute resolution method, more suitable to the remaining issues.

 VI.3 In case of a provisory agreement, all participants shall agree on the period of validity and return date regarding evaluation or any adjusts needed.

 VI.4 When the matter in question does not require homologation; the participants may opt for verbal agreements or for formalizing them as contracts or extrajudicial executive order, according to their own interest or the guidance of the advisors. However, the participants must be aware that the lack of formalization as an extrajudicial executive order makes the agreement impossible to be used in court as part of a litigation object.

 VI.5 The agreements may assume a legal language upon the parties’ requesting or if the matter requires. This shall be done by the technical judicial assistance along with the parties and mediators.

VI.6 The agreements may contemplate the possibility a compliance tracking.

[1] The Agreement Term contains all matters and commitments assumed by the parties involved in a detailed way.

 

VII. Closing – Final Mediation Term

VII.1 By the end of the mediation procedure, the parties shall sign the final mediation term, which results from the consensual agreement, late payment or above limit payment (see item IV.6 above) and unilateral decision from one of the parties involved.

VII.2 In case mediators understand that the negotiation has become unproductive, or due to a moral reason that makes impossible for them to continue (case in which the mediators are not obligated to explain the reason); the final term must declare the procedure`s ending and carry the signature of all participants involved.

VII.3 In case the procedure`s ending occurs due to an individual decision from one of the parties, the term may contain its written will and formal manifestation of the other participants, taking in consideration that any persuasion attempt regarding this decision is prohibited.

VII.4 The mediation agreement may also be mentioned the final mediation term.

[1] The final mediation term shall include both beginning and ending mediation dates, and, if required, an overview regarding the mediation agreement.

 

VIII. Final Provisions

VIII.1 For research means, the chamber reserves the right of publishing quantitative (numbers of adherence/ non-adherence; total or partial agreements) and qualitative (relationship improvement and dialogue restoration) data regarding the cases; always guaranteeing anonymity and confidentiality, related to the parties involved.

VIII.2 The existing Regulation on the date of signature of the Participation in Mediation Term is the one to be applied in the Mediation procedure. Any gaps in this Regulation may be filled by the mediators along with the parties and must be validated by the Chamber`s Board of Direction.

VIII.3  The number of original copies regarding the agreement and final terms will be proportional to the number of parties, also, one copy shall remain filed in the chamber’s secretariat for 36 (thirty-six) months, being discarded after this period.

VIII.4 The Chamber and the mediators shall have no responsibility for the terms of any settlement that leads to termination of the Mediation, or of its suspension, when they result from the deliberation and co-authoring of the parties themselves.

VIII.5 During the entire mediation procedure and for a period of twelve (12) months after the Final Mediation Agreement’s or the Agreement in Mediation’s signature date, the mediators are prevented from participating or assisting in proceedings of any nature related to the object of the mediation procedure in question and involving any of the parties, except for the resumption of Mediation. After such term has elapsed, they may participate or advise in procedures involving any of the parties since these procedures have no relation with the controversy before analyzed.

VIII.6 The present regulation has been received in November 19th, 2018 and comes into force in its publishing date in the MEDIARE website. It shall be registered in the Registry of Deeds and Documents and can only be amended under express and specific approval of the Chamber’s Direction Board.

Rio de Janeiro, November 19th, 2018.

 

Access the PDF on Regulamento 2017.

 

[1]Art. 30, paragraph 3 of Law No 13.140/2015 (Mediation Law) disposes that: “The information concerning the occurrence of a public crime shall not be bound by the confidentiality rule”; also highlights that “The confidentially rule does not exclude the duty of the parties mentioned in the head provision hereof to provide in- formation to tax authorities after the final mediation instrument is completed, and the agents of said parties shall also be bound to the obligation of keeping the confidentiality of the information shared under the terms of Article 198 of Law No. 5172, of October 25, 1966 – National Tax Code”.

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