By Fabio Marques

Business conflicts involve the entrepreneur and the business activity within the context of the company, between partners or with third parties. In legal terms, it is said that a conflict of interests is characterized by the resisted claim of either party, giving rise to a subjective right and, consequently, a claim to a right that will be exercised through the right of action.

Conflicts between partners seriously affect companies, sometimes forcing the interruption of business activity, occasionally situations forced by court injunctions, or with the partial dissolution of the company and the obligation of the remaining partner to pay the value of the shares of the partner who withdraws from the company due to the breach of contract. social affection, burdening the partner and the company.

Despite the natural and permanent tension in the relationship between partners – tension that is present in all legal relationships and that originates from different claims – it is not uncommon to find clauses in the articles of association that regulate the withdrawal of partners, or the succession of partners, written in a simple and formal manner, as if this situation would never occur.

These clauses often contain vague expressions about how to determine the value of the partner's share and the form of payment, which creates problems between the partners and forces the parties to interpret the clauses judicially, which will not meet the interests of these same parties.

When carried out in legal proceedings, the determination of the shareholding is done through a procedure that determines the value of the company's net equity and goodwill – when applicable – which means that the equity value will not be considered in these situations, generating frustration for the partner who withdraws, or, on the contrary, creating a very high obligation for the partner who remains in the company, now obliged to also pay for the share of the partner who decided to withdraw.

In the action for partial dissolution of a company, for example, the partner who intends to withdraw simply needs to argue for the end of what is called social affection, or social affection – in a very defective translation, but which is common in doctrinal books – and which designates the will to remain a partner and the good relationship between the partners, so that the Judge authorizes their withdrawal from the company by means of a preliminary order, following the process with the objective of determining the value of the shareholding.

In some situations, even clauses drafted under professional guidance at a given moment in the company's corporate and economic life may not have the effect expected when they were drafted, often many years earlier.

With all these problems and, furthermore, with the already known slowness of the judiciary in resolving cases, and the certainty that the judicial decision will displease both parties, the possibility of partners resolving these issues through conflict mediation appears to be the best solution available to partners to resolve issues in the corporate relationship.

The mediation activity is provided for in Law 13,140/15 and the legislative text – despite the lack of need for legislation for this type of activity – clarified principles that should be present in the mediation activity.

It is not the role of the law to list principles that arise from the interpretative activity of doctrine and jurisprudence, which could lead in many situations to a contradiction between the principles elected by the Law and the principles arising from the activity of interpreting the Law, constructed over the years and which transpire from the Law.

Furthermore, we know that principles are normative species applied concretely by the method of preponderance, based on the interpretation made in the specific case and, thus, in some situations the principle-based preponderance may indicate the overlapping of another principle other than one of those elected by Law, generating not only a conflict – not only of preponderance – but legislative and methods of interpretation of Law, given the common rule that the special prefers the general.

Finally, just to complete this critique, the activity of legal interpretation – doctrinal and jurisprudential – is an activity in movement that updates itself, finds new meanings for legal norms and principles, while the Law is static and does not update itself.

With this dimension in mind, it is said that article 2a of Law 13,140/15 lists the following principles that guide the mediation activity: (a) impartiality of the mediator; (b) equality between the parties; (c) orality; (d) informality; (e) autonomy of the will of the parties; (f) search for consensus; (g) confidentiality; (h) good faith. 

All these principles have already been elucidated and discussed by doctrinal activity, and have been applied intensively in the interpretation of case law for procedural activity and for private law in general.

The impartiality of the mediator is a premise of the mediation activity that comes from the principle of equality, that is, the right of the parties to receive the same treatment from the conciliator. The principle of equality has a constitutional basis, and is provided for in Article 5, and constitutes a value guaranteed in the Basic Law that refers to the equality of people before the Law.

The principles of orality; (d) informality; (e) autonomy of the will of the parties; (f) search for consensus, are also principles of civil procedural law, and the principle of autonomy of the will, or, as it is said, private autonomy, is a general principle of law.

The confidentiality included in the Law as a principle opposes another principle of civil procedure that refers to the publicity of acts as a general rule, although confidentiality is also present in the Arbitration Law, and appears in the context of mediation as an additional advantage of the parties who will not make public the reasons for the conflict, its corporate viscera, which will occur if the issue is dealt with in a public forum.

Finally, good faith is also a general principle of law. In the case of Law 13,140/15, subjective good faith must be observed by the parties, but it is also possible to understand that the Law intended to refer to objective good faith, already widely studied and understood by doctrine and jurisprudence and which is revealed in the trust and honesty of the parties.

Of all these principles, the confidentiality imposed on both parties and the conciliator appears to be a great asset for the parties when submitting to this type of procedure.

Regarding mediation, it is necessary to say that mediating means formulating proposals for agreement between the parties based on each party's narrative, and that it is balanced.

When two parties intend and dispute the same right and opt for a judicial solution, they will ultimately receive a decision in which the judge will subsume the facts to the law and, in this case, will declare the victory of one of the parties, even if the victory is partial.

Winning a lawsuit, however, does not necessarily mean seeing the claim originally expressed accepted by the Judge, since between the claim and the decision there is a sea of variables, including time, which acts as a limiting factor for claims, and, in corporate disputes, imposes serious losses on the company and its partners.

The corporate procedure makes it mandatory for the parties to attend the first mediation meeting, if provided for in the contract, as provided for in § 1 of article 1 of the aforementioned law.

The methods used for mediation have different origins, but necessarily involve the mediator's transparency in showing the parties the conflict with the arguments of both sides.

By showing the conflict with antagonistic arguments, the mediator is calling the parties to double-think, to calculate gains and to add the time factor to these calculations. It is not difficult to understand, therefore, that mediation, when done well, tends to present much better results than other methods of conflict resolution.

One last observation is necessary: conciliation does not mean that each of the parties in conflict registers a loss in relation to their claims: any conciliation in which the parties decide based on this premise will be bad, this, however, does not mean that the parties must clearly and objectively recognize the limits of their claims, and that such limits may be measured at different points from those they usually estimated.