After being discussed at the House of Representatives, the Senate approved on June 2, 2015 Alternate Bill from the House of Representatives (SCD) No 9/2015 to Senate Bill (PLS) No 517/2011, which provides for the mediation between individuals as a dispute resolution means and settlement of conflicts within the ambit of Government.
The approved law defines mediation as the technical activity performed by an impartial third party without decision-making power which, when selected or accepted by the parties assists and encourages them to identify or develop consensual solutions for the controversy.
Mediation, as an alternate conflict resolution method, may be employed in cases involving discretionary rights or non-discretionary rights that admit negotiation. It is important to note that the mediation may affect the entire conflict or part thereof and may be carried out in court or out of court.
In its general provisions, the bill provides that no one will be obligated to stay in a mediation procedure.
In the out-of-court mediation, the mediator will be selected by the parties while in the court mediation, the mediator will be selected by the court.
The duty of the mediator will be to conduct the communication between the parties effectively, seeking understanding and consensus and facilitating the conflict resolution. In the performance of his duties, the mediator may meet with the parties together or in separate, as well as to request the parties provide the information he deems necessary to facilitate the understanding between them. As a general rule, the mediation procedure is protected by confidentiality and secrecy rules.
The same legal hypotheses of impediment and disqualification that apply for a judge also apply for a mediator. In addition, the mediator is disqualified for one year counted from the end of the last hearing at which he served, during which time he is prevented from assisting, representing or acting as counsel for any of the parties mediated thereby. Furthermore, he may not serve as an arbitrator neither be a witness in lawsuits or arbitration procedures related to the conflict in which he served as a mediator.
Any capable person that the parties trust and that is qualified for mediating may act as an extrajudicial mediator, regardless of their academic qualification. However, the court mediator must have a college degree completed at least two years prior and must have obtained qualification in a school or institution that prepares mediators duly accredited by Escola Nacional de Formação e Aperfeiçoamento de Magistrados - ENFAM (National Judge Preparation and Improvement School) or by the courts. The courts will have to create and keep a database of qualified court mediators. With respect to the Government, the approved bill sets forth that governmental entities may create chambers for prevention and administrative resolution of conflicts, which includes mediation, within the ambit of the respective entities acting as counsels for the government, where applicable, with jurisdiction for: resolving conflicts between governmental entities and bodies; assess the admissibility of the requests for conflict resolution, through settlement, in case of controversy between an individual and a legal entity governed by public law; when applicable, have a consent decree issued.
The approved bill was sent for presidential sanctioning.
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