Mediation on the spotlight

Amid the restrictions imposed by the pandemic, the method is an important ally in conflict resolution

By Sérgio Siscaro

Conflict resolution through mediation, in recent years, has been growing in importance in the Brazilian context, especially due to the agility, flexibility and saving provided by this method. Its use gained strength in 2015, when the Mediation Law was enacted, which even opened the possibility of its use by the Brazilian Public Administration. However, the challenge brought by the pandemic of the new coronavirus, which limited the movement of people, brought the need for a new reformulation in mediation proceedings, and ended up highlighting its advantages when compared to traditional litigation.

As a result, the Center experienced a 66.6% increase in the number of mediation cases conducted in the first semester of 2020, compared to the same period of last year, increasing from three to five proceedings.

Since 2006, CAM-CCBC has managed 67 mediations, involving resources of approximately R$ 6.7 billion – with an average value of R$ 145.7 million. According to the Center, from this total 31% of the cases involve business contracts, and 27% correspond to condominium and real estate rights. The rest is divided among civil construction and energy activities (16%), corporate law (14%), sales of goods and/or services (10%) and international contracts (2%).


Digital adaptation

In the evaluation of CAM-CCBC’s Mediation Advisory Board member, Adolfo Braga Neto, at first the need to migrate mediation proceedings to the digital environment brought insecurity to the parties – which was soon overcome. “The resource that has been mostly used in mediation is videoconferencing, which allows the contact between participants, exchange of documents, etc. The online mediation proceedings, strictly speaking, also incorporate the possibility of specific tools for the dialogue between parties and the chat for private conversations, among other resources”, he says.

According to him, the flexibility and speed features of mediation proceedings are benefited with the migration to the digital environment. “Since it is not possible to hold face-to-face meetings, technology has brought people together.”

CAM-CCBC was agile in adapting to this new scenario, maintaining the administrative conduct of mediation and arbitration proceedings and establishing rules through administrative resolutions and recommendation notes. Conducted through remote communication solutions, with the support of the Information Technology (IT) staff of the Center, the proceedings are administered in order to ensure the process efficiency and the security of all involved participants.


Contracts’ revision

Braga Neto also points out that the pandemic affected product suppliers, service providers, civil construction and several other areas of the economy, which leads to the need to renegotiate contracts entered into before the emergence of the new coronavirus.  And mediation is one of the most adequate methods for resolving conflicts like these.

“This is one of the little-known characteristics of mediation. Due to its great flexibility, it can continue drawing both provisional and definitive understandings between the parties. These contracts usually show a relationship of a certain time between companies, and their updating requires a moment of adequacy, for a further reassessment, with other parameters. Mediation can contribute to this”, he says.


The future of mediation

For Braga Neto, there is a favorable scenario for the dissemination of mediation as a tool for conflict resolution – and this perception should increase due to the situation brought by the pandemic.  “Gradually the method is gaining room and becoming better known in Brazil.  It is already entering in areas in which it did not operate before, such as the judicial reorganization of companies and even in the resolution of internal conflicts of organizations.  Another important segment that has been emerging is the Public Administration, which has much to gain from the speed of proceedings”, he examines.

He also points out the advantage brought by institutional mediation, offered by organizations such as the CAM-CCBC: “It is a way to provide more security to the parties, paying a detailed attention to all points of the proceeding and, in the current cases of online mediation, providing all the necessary technical assistance to those that are not familiarized with digital tools.”