Aline Cavalcante de Souza Sanche
Lawyer at Marcos Martins Law Firm
Recently, the regulations on judicial reorganization were amended by Law No. 14.112/2020, by including various provisions in Law No. 11.101/2005 and, as part of this amendment, in an unprecedented way, the use of mediation and conciliation in claims of this nature was expressly provided for
Article 20-A of the law stipulates that mediation and conciliation should be prioritized and encouraged in judicial recoveries, at all levels of jurisdiction
In its article 22, item I, point “j”, the new law establishes that it is the duty of the Judicial Administrator to “encourage, whenever possible, conciliation, mediation and other alternative methods of resolving conflicts related to judicial reorganization”
It also introduced a relevant innovation by including in its text, in section II-A, a specific chapter on mediation and conciliation, indicating that these acts should be carried out prior to or incidental to judicial reorganization proceedings
As hypotheses for the use of out-of-court means of resolving conflicts, the law in question introduced the possibility of setting up a conciliation or mediation section to resolve disputes between the partners and shareholders of the company in crisis, as well as to negotiate with creditors not subject to judicial reorganization, known as extra-creditors
All negotiations concluded in this new legal hypothesis, in judicial reorganization proceedings, must be ratified by the competent judge, to ensure that there is no violation of the principles governing judicial reorganization, especially equality of conditions between creditors
In this vein, another innovative alternative made possible by Law No. 14.112/2020, in its article 20-B, paragraph 1, consists of the possibility of granting precautionary injunctive relief, after the request for judicial reorganization, in order to suspend the executions proposed against the debtor, for up to 60 (sixty) days, to try to reach a settlement with the creditors, in mediation or conciliation proceedings
With this option, it becomes feasible for companies in crisis to negotiate the extension of deadlines and discount, even before the judicial reorganization is granted, making it possible for the debtor not to have to resort to the procedure or, even, to arrive at the proceeding with negotiations at an advanced stage, facilitating the approval of the reorganization plan
One of the main advantages of using alternative methods in judicial reorganization proceedings is the reduction in costs involved in mediation or conciliation, when compared to other judicial procedures
In addition, the use of consensual means provides a much faster resolution to disputes, on the one hand prioritizing the preservation of the company in crisis and, on the other, enabling creditors to receive payments more effectively Given that conflict resolution through conciliation and/or mediation presupposes the reciprocal concession of interests by the parties involved, they tend to understand the outcome of the agreement in a satisfactory way from the point of view of the distribution of justice, which consequently contributes to social pacification
The innovative possibility of using consensual methods of conflict resolution in judicial reorganization is a very efficient instrument for speeding up the overcoming of the crisis, considering that the procedure involves multiple parties and interests, which can be resolved in an alternative way by applying conciliation and mediation
Marcos Martins Advogados is attentive to the innovations presented by Law 14.112/2020, so that the most innovative instruments for resolving disputes can be applied, mitigating costs and maximizing the effectiveness of judicial reorganization.
