Meeting promoted by the CAM-CCBC will stimulate discussion on the challenges and opportunities of the method in Brazil

By Sérgio Siscaro

Recognized five years ago by the Brazilian legislation, mediation is one of the alternative methods for dispute resolution (ADRs) that have gained space in the country – providing efficiency in the expenses adduced by the parties and more agility to the process. In order to bring together the Brazilian mediators community in a friendly environment, the CAM-CCBC will promote on November 26, at 5:00 p.m., the 1^st Meeting of the CAM-CCBC Mediators List. At this time, an evaluation of the current state of mediation in Brazil will be made, with exchange of experiences and discussion of projects and initiatives that can contribute to the development in the use of this ADR in the country. The event will be held virtually.

One of the participants of the meeting will be mediator Roberto Baumgarten Kuster, senior partner of the firm Faleck & Associados. He says that the initiative will provide a great basis for discussing topics relevant to the method. “My expectation regarding the event is the best possible. It will be a great opportunity to align expectations, exchange ideas and best practices with market leaders, and think together about how to contribute to the development of mediation”, he says.

When analyzing the current situation of the mediation market in Brazil, Kuster believes there is an increasing number of companies and offices that have used the method extrajudicially. This trend gives lawyers a “competitive differential”, as it allows the proposition of new paths for conflict resolution. This increasing experimentation with mediation has brought good results, expanding the number of advocates of this ADR.  “In this sense, mediation is no longer a ‘product of the future’ and becomes a solution of the present”, he points out.

Challenges and opportunities

For Kuster, one of the main challenges for the dissemination of mediation in the country is the practical experience of professionals, which still needs to be solidified by working on more procedures. Practical experience is an essential element for improving a mediator reputation. “And this will happen with no magic formula, but with resilience and impeccability, brick by brick. Although the market has few formal barriers, there are several barriers ‘in fact’ for the mediator being engaged and heard”, he says.

According to him, the market expansion depends less on the theoretical training of a large volume of professionals, and more on their ability to connect with the needs of the companies that hire them. “For that, he needs to understand the business, focus on what is important and be a bridge of efficiency in the dispute.”

According to Kuster, the spread of Covid-19 throughout 2020 strengthened the need for the parties to face the legal litigation as the last alternative – and therefore, it favored the search for alternative means such as mediation, “both to anticipate gains and to reduce losses in the midst of the crisis”. In addition, the use of distance communication tools increased the efficiency of the parties in terms of schedule planning. “I also have the impression that the pandemic has created a ‘gold rush’ in mediation, with a very high number of professionals entering the market and disseminating their services, webinars and courses”, he points out.

Mediation on the rise

The 1^st Meeting of the CAM-CCBC Mediators List takes place at a time when the method experiences an expressive rise in Brazil. Until September of this year, the Center saw an increase in the number of mediation cases, especially in case values compared to the first nine months of 2019. The amount involved in the 2020 procedures was R$ 2.25 billion, with an average value of R$ 321 million per procedure.  On the other hand, the same period of 2019 represented the total amount of approximately R$ 203 million, with an average value of R$ 33 million per procedure.

In addition to the event, the CAM-CCBC has promoted other activities in order to encourage the use of mediation and disseminate knowledge regarding its benefits to society. On October 30, the Mediation Task Force promoted a webinar addressing the use of the modality in business litigation; and on November 10, another meeting discussed the mediation in the civil engineering sector.