Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
The National Council of Justice (CNJ), through the Justice in Numbers Report[1], found a volume of 78 million cases in progress in the country’s Judiciary in 2018. Although the reduction in volume compared to 2017 is celebrated (a 1.2% drop in volume), it is undeniable that this volume represents an obstacle to the useful and effective satisfaction of the rights of users who turn to the judicial machine as an alternative for discussing their conflicts.
The fact is that Brazilian legislation, supervisory bodies through programs and incentives, the Courts themselves and even contemporary business management have all moved away from litigious conflicts towards faster and more effective resolution mechanisms, according to the specific case, in a realization that judicialization is not always the best alternative.
Alternative means of conflict resolution are always consensual procedures, i.e. the parties are trying to come to an agreement, to find an alternative that is favorable to both of them, whether through a third party or not. Furthermore, the matter arising from the disagreement is dealt with in a more specialized way, as the parties will be assisted by a third party who has technical knowledge of the subject.
In conciliation (or self-composition), which is even practiced in the courts, the conflict is resolved by consensus between the parties, who waive and grant rights to each other. In the business environment, self-composition as a means of resolving conflicts is a pressing issue, as it avoids wear and tear in commercial relations, whether it be disagreements between companies that have been in business for a considerable period of time, as a way of reaffirming the partnership that is strengthened by resolving deadlocks quickly, informally and effectively, or between companies that have recently entered into a business relationship, as a way of demonstrating their willingness to resolve any disagreements without further wear and tear.
Mediation is the appointment by the parties of a third party, unrelated to the conflict, to help them, either by bringing the parties together for negotiations, or by proposing alternatives for resolving the impasse. In this case, the parties sign an agreement, with the force of a “contract”, which can be ratified by the courts. This measure is indicated when the parties, although they are in a stressed relationship, see a third party as a means of resolving the conflict in a negotiated manner. The third party will be paid by the parties. Mediation can be judicial or non-judicial – there are places that specialize in this service. The advantages attributed to choosing this method of conflict resolution include confidentiality, since the parties do not discuss the claim with the third party, speed, compared to discussing the claim in court, and the re-establishment of conciliatory ties between the parties, which at some point in the business relationship became disjointed.
In arbitration, the parties elect arbitrators to resolve the conflict, and their decisions have the effect of a judgment before the courts. It can be seen that by electing this route, the parties do not have the ability to reconcile, and it is necessary for the conflict to be analyzed by a third party who will decide the issue. Although the cost of the procedure is significant, it is worth noting the speed of the discussion compared to choosing the judicial route, as well as the arbitrator’s expertise in the matter being discussed.
It is recommended that the interested parties be assisted by a lawyer, either to discuss the possibility and cost-benefit of seeking alternative means of resolving the claim, or to monitor the proceedings, ensuring that the party will have their guarantees and rights protected.
It is true that alternative means of resolution will not always be possible considering the complexity or nature of the matter, but the parties must take on the role of active subjects and participants in the search to resolve their problems in the least burdensome way.
Is this subject of interest to you? The team at Marcos Martins Advogados has extensive experience in providing legal advice to companies of all sizes, and is qualified to deal with all demands aimed at guaranteeing your company’s maximum performance. Contact us.
[1]National Council of Justice. Justice in Numbers 2019. Brasília: CNJ, 2019. Available at: https://www.cnj.jus.br/wp-content/uploads/conteudo/arquivo/2019/08/justica_em_numeros20190919.pdf
