By Fabio Marques

It is possible to say that there is a regulatory legal system for appropriate methods of conflict resolution, alternative to judicial methods, composed of the civil procedure code, law 13.105/15, the Mediation Law (Law 13.140/15) and the Resolution of the National Council of Justice Res CNJ 125/2010.

CNJ resolution 125/2010 was drafted by the Judiciary Branch's oversight body in Brazil and has very important wording in that it recognizes alternative means of conflict resolution as a citizen's right, in the wording of article 1, "The National Judicial Policy for the treatment of conflicts of interest is hereby established, aiming to ensure everyone the right to resolve conflicts by means appropriate to their nature and peculiarity", As amended by Amendment No. 1, of 01/31/13.

The second paragraph of the first article refers specifically to article 334 of the Brazilian civil procedure code and article 27 of the Mediation Law, requiring jurisdictional bodies to offer the parties dispute resolution mechanisms, in particular, says the article of the law, “consensual means such as mediation and conciliation, as well as providing assistance and guidance to citizens”.

This CNJ resolution calls upon the National Council of Justice to undertake the state function of organizing a program with the objective of promoting actions to encourage the self-composition of disputes and social pacification through conciliation and mediation, which The program will be implemented with the participation of a network made up of all bodies of the Judiciary and partner public and private entities, including universities and educational institutions.

The Mediation Law, Law 13.140/15, expands the procedures and has the important function of ensuring mediation as an alternative means of conflict resolution.

In relation to the mediation procedure, the law establishes the obligation of the mediator to inform – and guarantee – the parties the confidential nature of the mediation, that is, the confidentiality rules applicable to the procedure.

Secrecy – or confidentiality – is an attribute that also exists in arbitration procedures and that brings an advantage to the parties that does not exist in legal proceedings in general, which can be accessed by any qualified lawyer in a matter of seconds.

The confidentiality of the process involves, firstly, the mediator's obligation to maintain the confidentiality of the process and, therefore, the mediator cannot disclose information received as a result of the mediation. The prohibition of disclosure occurs in relation to third parties and in relation to the other party in the mediation procedure, except, evidently, for the limits and purposes of that process.

In relation to the procedure, the mediation law governs the relationship between the parties, so that at the beginning of the first mediation meeting, and whenever deemed necessary, the mediator must alert the parties about the confidentiality rules applicable to the procedure.

The law also establishes the possibility, at the request of the parties or the mediator, and with their consent, of admitting other mediators to work in the same procedure, when this is advisable due to the nature and complexity of the conflict.

And, even if there is an arbitration or judicial process underway, the parties may submit to mediation, in which case they will request the judge or arbitrator to suspend the process for a period sufficient for a consensual resolution of the dispute.

Finally, the law also regulates the equal treatment given to the parties by inserting in its art. 18. Once mediation has begun, subsequent meetings with the presence of the parties may only be scheduled with their consent.