Put: Vitor Antony Ferrari and Ivan Kubala
The incentive to use alternative means of conflict resolution for Bankruptcy and Judicial Recovery processes was already present in the Brazilian legal system before Law 14.112/20. As an example, we have Recommendation No. 58/19 of the CNJ, which recommended that judges working in bankruptcy and judicial recovery courts use mediation to resolve conflicts between litigants whenever possible.
Law No. 14,112/20 introduced into Law No. 11,101/05 the provisions of Section II-A, which expressly deal with the encouragement of the use of mediation in conciliation at any level of jurisdiction, including before the request for judicial recovery.
Aiming to favor self-composition between the parties, art. 20-B, paragraph 1, establishes that in the event of mediation or conciliation for the negotiation of debts between the debtor company and its creditors before the CEJUSCs (Judicial Centers for Conflict Resolution and Citizenship) before the filing of a request for judicial recovery, there will be the possibility of suspending the executions in progress, for a period of up to 60 (sixty) days. This period will be deducted from the “stay period” if there is a need to file for judicial recovery.
The new provisions are also beneficial to creditors, given that according to art. 20-C, if there is a request for judicial recovery within 360 (three hundred and sixty) days of the agreement being signed, the rights and guarantees originally contracted by the creditor will be reinstated, with the deduction of any amounts paid and except for acts validly performed within the scope of these procedures.
Mediation or conciliation hearings may be held virtually, if the system is available at the respective CEJUSC and the agreement reached between the parties must be approved by the judge.
Thus, it is concluded that the new provisions on self-composition included by Law 14,112/20 bring favorable provisions for both parties with the aim of promoting the pacification of conflicts through alternative methods and ensuring speed and legal certainty to the procedure.