Eduardo da Costa Santos Menin
Lawyer at Marcos Martins Advogados
Much has been said these days about conciliation and mediation as ways of resolving disputes in the judicial sphere.
Conciliation is the amicable resolution of a conflict. Thus, the primary spirit of conciliation, most often obtained through a mediator, is the search for a peaceful resolution of a dispute through consensus between the litigating parties, with a consequent negotiated solution.
Even though conciliation and mediation were already widely adopted in Brazilian courts, they still lacked their own regulations within the scope of Brazilian civil procedure.
Therefore, in order to fill the gap left in the current Code of Civil Procedure, the legislator instituted an exclusive section in the new code, which comes into force on March 17, 2016, to deal with conciliation and mediation. Conciliation will be greatly encouraged in the courts through the creation of judicial centers for consensual conflict resolution, which will be responsible for holding conciliatory hearings, as well as developing programs to guide, assist and encourage conciliation.
Just to give us an idea of the scope of the reform, I transcribe article 165 of the New Code of Civil Procedure below:
Art. 165. The courts will create judicial centers for consensual conflict resolution, responsible for holding conciliation and mediation sessions and hearings and for developing programs designed to assist, guide and encourage self-composition.
It can be seen, therefore, that the new code sees conflict resolution through judicial centers as the way out so that we have other quick and effective means of resolving conflicts.
In order to overcome the informality of conciliation, when it is set up by the judiciary, the legislator took care to guide all acts of conciliation based on the guiding principles of the judiciary, including independence, impartiality, confidentiality and, above all, the autonomy of the parties’ will.
Despite the lack of regulations to date, the courts have been seeking and encouraging conciliation for some time in order to reduce the volume of lawsuits that drag on for years without achieving a practical and satisfactory result for the plaintiffs.
Given this scenario, it is believed that conciliation will result in faster justice, aimed at discouraging the postponement of legal proceedings, leading, above all, to a reduction in the backlog of demands in the courts, with a consequent improvement in the quality of judicial service.
Everything indicates that conciliation has come to establish itself definitively. Even in the administrative sphere, the Union, States and Municipalities will set up mediation and conciliation chambers with the aim of obtaining a consensual solution to conflicts.
