A legal landmark for the institution of mediation in Brazil, Federal Law no. 13.140/2015, which establishes rights and duties for the guidance of parties, lawyers and mediators, was published on June 29, 2015 in the Official Gazette of the Union, and will come into force 180 days after its publication.
Described as the "technical activity exercised by an impartial third party without power of decision, who, chosen or accepted by the parties, helps them and encourages them to identify or develop consensual solutions for the dispute", mediation is nothing more than a means of resolving litigation between private persons and the settlement of disputes by the parties themselves in questions involving the government.
Focusing only on disputes between private persons, whether individuals or legal entities, the mediation procedure may be extra-judicial or judicial. In the first case, the invitation to start the procedure may be sent by any means of communication and must state the date and place of the first meeting. If no reply is received within 30 days from the date of its receipt, the invitation will be deemed to have been refused.
Moreover, the Law contemplates the situation where the parties include a mediation clause in their contract, which must state: earliest and latest dates for holding the first meeting, as from the date of receipt of the invitation; venue for the first meeting; criteria for choosing the mediator; penalty in event the party invited fails to attend the first meeting.
In the absence of a contractual provision for mediation, certain criteria must be observed for the holding of the first meeting: not earlier than 10 business days and not later than 3 months, as from receipt of the invitation; venue suitable for a meeting that may involve confidential information; list of 5 names, contact information and professional references of qualified mediators.
As regards judicial mediation, the courts will create centers for consensual resolution of disputes, responsible for holding sessions and hearings for conciliation and mediation. The procedure must be concluded within 60 days as from the first session and the mediators will not be subject to prior approval of the parties.
On termination of the mediation procedure the terms agreed upon will be set out in a document that will constitute an extra-judicially enforceable instrument; when ratified judicially, it will constitute a judicially enforceable instrument.
It is also important to note that all information relating to the mediation procedure will be confidential in relation to third parties, and may not be disclosed even in arbitration or court proceedings, unless the parties expressly decide otherwise.
Guided by the principles of impartiality of the mediator, informality, free will of the parties and confidentiality, mediation represents a process of cultural transformation that will require a substantial investment in the court structure, training and qualification of mediators so that the experience may induce the parties to seek further alternative solutions for the resolution of disputes.
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