Smith International Legal Consultants, P.A.

While the growth of arbitration in Brazil is undeniable, other forms of ADR still have a long ways to go. In our conversations with practitioners in Brazil, mediation is something people want to discuss and improve, but often there is a lack of enthusiasm in some corners and a lack of training in others. In particular, many practitioners and courts want to know about mediation, but there seem to be serious hurdles: the lack of a mediation law (in development for years now), inattention to mediation rules from local arbitration institutions, and a culture unaccustomed to mediation and slow to adopt it. With these thoughts in mind, a recent article on a highly successful mediation program in Brazil caught my eye.

In the state of Amazonas, the highest court of the state has organized a team of lawyers, psychologists, and social workers to create a system for mediating family law disputes. This team connects with other key institutions in the area, including governmental organizations, schools, churches, and other relevant institutions. The team then works with the parties to the lawsuit, focusing on a more holistic approach. The team tries to build the self-esteem and awareness of everyone's rights and create a positive environment where the parties to the lawsuit can move on with their lives, remaining in contact with the children in a positive way. And what about results? The court cites very high rates of success, arriving at mediated settlements in over half of the cases referred to this special team.

Knowing that this program focuses on the area of family law, it may seem irrelevant for commercial and international cases. But the article directly and effectively addresses some of the core issues inherent in an effective mediation culture. First, the article shows that mediation can be successful; Brazilians are not somehow incapable of arriving at a mediated settlement. Second, the article shows mediation can occur without a highly advanced mediation law. This does not diminish the efforts of those seeking to pass the law, but it also does not provide an excuse to delay successful implementation of a mediation culture. Finally, this mediation program was successful without a set of rules for an arbitral institution to guide the parties. In sum, the article speaks to many of the key criticisms of mediation in Brazil.

At this point, it may be helpful to note some of the differences between mediation in the US and Brazil. In the US, mediation is mandatory in many cases, and mediators often work to try and get both sides to compromise. The approach often focuses on the risk of future litigation, whether it be costs, time, or uncertainty. In a way, the mediator is almost focusing on the monetary side of the dispute, using the risk of having to spend lots of money to help settle the dispute.

In Brazil, mediation draws more on psychology and theories underlying why people settle. Once, I visited a mediation facility in Brazil to find the rooms had certain colors and arrangements of chairs to help facilitate resolution of the dispute. There was a one-way mirror so that observers could study the process, and the room had the feel of carefully orchestrated living room, not a more functional looking boardroom typical of many mediation locations in the US.

So what does the article mentioned in this post mean for Brazil and Americans doing business in Brazil? It could mean a lot. Mediation is certainly achievable, and as it develops in Brazil, it may look quite different than the US or other countries. Perhaps a more collaborative approach involving multiple stakeholders could prove effective, and there is certainly no excuse that would prohibit the growth of mediation in the country. More than anything, it looks like the development of a mediation culture in Brazil will be something unique.

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