ORIGINAL ARTICLE
SOUZA, Jaqueline Caldeira [1], TARTUCE, Fernanda [2]
SOUZA, Jaqueline Caldeira. TARTUCE, Fernanda. Mediation in the resolution of business conflicts. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year. 06, Ed. 12, Vol. 06, pp. 166-188. December 2021. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/conflict-resolution
ABSTRACT
The aim of this article is to analyze the applicability of mediation as an appropriate method of resolving business conflicts, seeking to demonstrate the benefits that its use can provide in the resolution of disputes and in the reestablishment of communication between the parties, with faster, creative, confidential and effective solutions. Thus, the present work has as a guide question: Would mediation as a method of consensual solution be adequate and beneficial to resolve business conflicts? Being outlined a brief analysis of the appropriate methods of conflict solutions and their main differences, as well as a broad view on out-of-court mediation and its particularities, addressing its relationship and application in the business environment, presenting some successful experiences, which prove the effectiveness and benefits of the procedure, serving as an incentive to the use of business mediation. This method of conflict resolution has acquired great proportions in the most diverse areas of law, in the face of the judicial crisis experienced by contemporary society, as well as the growing demand for methods that meet the needs of conflicts, which become increasingly complex, making room for the development of appropriate methods of conflict resolution, such as conciliation, mediation, negotiation and arbitration. Mediation in particular has been able to resolve business conflicts, although there are some challenges to be faced, since a large part of the country’s business has not yet considered resorting to mediation, either because of doubt in the use of the method or the ignorance of its benefits. However, some experiences with positive results prove that mediation is appropriate for conflict resolution and preservation of business relationships. The research method used was the hypothetical-deductive, considering theoretical concepts, empirical analysis and bibliographic research, it is concluded that extrajudicial mediation is applicable, adequate and beneficial in the resolution of business conflicts, with low costs, greater speed, simplified procedure, qualified mediators, all confidential acts, and contemplation of the interests of the parties, with creative solutions and greater probability of the implementation of the final term.
Keywords: Private Mediation; Business Conflicts; Consensual Solution.
1. INTRODUCTION
With technological evolution, the media, the development of society, and the transformation of economic and competitive aspects, companies are obliged to be more dynamic in the management and resolution of their conflicts, because this seary requires quick and effective responses.
In contemporary society, in the midst of transformations and economic crises, companies are susceptible to numerous, increasingly complex disputes, making the search for more effective solutions more frequent, the search for methods that can contribute to the preservation and image of the company, and avoid economic losses.
Business conflicts without due management can leave great reflections, delaying the development of the company. Mediation can be an excellent tool in managing these conflicts, since the strategies and methods used in mediation can provide more effective, confidential agreements, with mutual gain, saving time and financial resources, preserving autonomy and relations between the parties. Given this context for delimitation of the theme, the following problem was chosen: Would mediation as a method of consensual solution be adequate and beneficial to resolve business conflicts?
The role of mediation is to restore communication between those involved, in an informal seafarer, enabling the parties to choose the mediator, to assume responsibility for the solution of the controversy that afflicts them, forming a consensus regarding the adjusted term and providing its spontaneous fulfillment.
With Resolution 125/2010 of the National Council of Justice (CNJ)[3], there was an incentive to the use of autocompositions, where the State provides society with alternative means to resolve its conflicts, mainly by consensual means, aiming at social pacification. (BRASIL, 2010)
The appropriate methods of conflict resolution, although similar, differ from each other, because each institute has its peculiarities, with differentiated mechanisms that are appropriate to the conflicts that will be presented to it, ensuring a more effective solution.
The specific out-of-court mediation, as an appropriate method of resolving business conflicts, brings the advantages in the business sphere and contributes to the growth and preservation of the company and its business relations.
In this context, the present study is part of the hypothesis that business mediation is applicable and adequate to effectively resolve business conflicts. Starting from the investigation and textual analysis, doctrines, relevant legislations and some experiences already carried out in the resolution of business conflicts, seeking to improve knowledge on the subject, stimulating and encouraging the development of consensual solutions.
The present study adopted the hypothetical-deductive method, together with bibliographic and legislative research.
2. APPROPRIATE DISPUTE RESOLUTION METHODS
With the increasing conflicts of increasingly complex conflicts, due to changes in relations, use of virtual networks, increasingly sophisticated technological resources and the dissatisfaction of the parties with the system of state jurisdiction, generates the decay of the judicial monopoly, thus increasing the search for appropriate means of conflict resolution (SILVA, 2019).
Although legal science is based on the law, it does not cease to allow other means of conflict resolution that can be promoted by society itself, thus the jurisdiction coexists with other private methods of dispute resolution (SILVA, 2019).
As forms of dispute resolution, self-guardianship has been applied since the beginning of society, heterocompositions and autocompositions means. In the heterocomposition method the solution of the conflict will be imposed by a third party, judge or arbitrator, submitting the parties to that decision even if it does not satisfy their interests, while in the autocomposition method, there may be participation of a third party to facilitate communication, however the result depends on the will of those involved, since the acceptance or refusal of the agreement depends on the choice of interested parties (CAHALI, 2018).
These systems offer the parties the choice of methods that best suit their needs, using private and informal mechanisms to solve conflicts together, thus emerging what is called Multiportas justice (SILVA, 2019).
This idea of Multiportas Court was consolidated with Resolution 125/2010 of the CNJ, where the State provides society with alternative means to resolve its conflicts, mainly by consensual means, aiming at pacification, this new public policy of proper treatment of conflicts of interest has caused a change in the so-called “culture of litigation”, because the parties involved help in the formation of opinions, and the beneficiaries of the consensual solution, can share this positive experience to expand the use of such institutes, with this, the Resolution enabled the development of conciliation and mediation (CAHALI, 2018).
As Fernanda Tartuce points out,
O sistema multiportas estatal pode ser definido como a atividade do Poder Judiciário empreendida para orientar os litigantes sobre as diferentes alternativas para compor o conflito, sugerindo qual seria a saída mais pertinente para o deslinde da questão; o Estado se incumbe de encaminhar as partes no sistema de multiportas de forma gratuita, orientando-as antes do início de uma demanda judicial (TARTUCE, 2018, p.72).
It is observed that the State has the role of promoting and encouraging the use of appropriate dispute resolution mechanisms, providing means that better suit the needs of those involved, aiming at restoring communication and preserving relations between the parties, effecting social pacification.
For effective access to justice it is essential that there are legal reforms, ensuring interests that are not adequately represented, because these new waves of reforms reach both the judicial and extrajudicial spheres, changing the form of procedures, structural changes in the courts, with the participation of lay third parties, creation of private and formal mechanisms of dispute resolution, in accordance with the conflict, involving persons, institutions and procedures that together can resolve or prevent due diligence. This need to effectively effect methods that actually satisfy the new rights has raised reflections on the system of judicial provision (CAPPELLETI; GARTH, 2015).
Thus, the term Alternative Means of Conflict Solution (MASCs)[4], comes Alternative Dispute Resolution (ADR), representing the methods available to the parties for the resolution of their disputes, mechanisms that differ from the judgment of a judicial process, with less formal procedures and the possibility of the parties resolving their conflicts together. About three decades ago, these methods were incorporated into the legal system all over the world, while in Brazil its application is recent, unlike the North American experience. However, the rationale for the application of these institutes is similar, because the costs and delay of state jurisdiction have led to the dissatisfaction of litigants, causing other procedures, such as private arbitration, conciliation and mediation to be adopted (SILVA, 2019).
In addition to these forms of conflict resolution, there are other less used forms that may be appropriate to the circumstances of certain conflicts, such as the Mini-trial system where the parties may elect a representative for each of the parties involved, these representatives together shall appoint the third party to examine and decide the issues of the conflict and represent the interests of those who have indicated them; there is the neutral third party boiling system, by common agreement the parties will indicate, the parties have experience and technical knowledge of the matter in conflict to assess and give a diagnosis as to the possible chances of success that each party has, that is, it is not a binding decision (CAHALI, 2018).
There is also the system called dispute board, in which is formed a committee of independent experts who will monitor the execution of a long-term contract, whenever necessary there will be meetings to verify contractual compliance and when possible conflicts arise, decisions have a recommendation in which the parties undertake to comply with them (CAHALI, 2018).
This system used mainly in construction contracts, because temporally between the signing of the contract until its completion several empasses arise, the use of this tool provides contractors and contractors to resolve their conflicts quickly and with lower financial cost (SALLA, 2019).
There is also the conflict management system or also known as Dispute System Design (DSD), aims to manage the conflict with subjective proportions, analyzing the conflict and verifying the best method fits for your solution, with monitoring of experienced facilitators who will promote direct negotiation, conciliation, mediation and other techniques that allow communication and joint construction of a solution (CAHALI, 2018).
For this system to succeed, it will be necessary to identify the parties and interest of each of them, making a survey of their concerns, fears, desires and wills as well as their economic situation and what alternatives they would have to participate in this procedure, considering the relationship between those involved, aiming at the real satisfaction of stakeholders (FALECK, 2020).
Another form of solution is the Administrative System of Internet Conflicts (SACI-Adm)[5], established by the internet management committee (CGI), with its own regulation, provides that the “Administrative System of Internet Conflicts relating to domain names under the “.br” – SACI-Adm – aims to resolve disputes between the domain name holder in the “.br” (called “Holder”) and any third party (called “Complainant”) who disputes the legitimacy of the registration of the domain name made by the Holder”. The conflict is resolved in an accredited institution chosen by the complainant (REGULAMENTO SACI-ADM, 2010).
These systems provided that, legitimized by the State, offer options that will consider the interests of those involved who will choose the appropriate means of resolution to be used, thus representing several doors that can be opened and trodden. This multiportas model has several forms that can be adopted to resolve the conflict, enabling the implementation of this system to be inclusively applied on issues involving public power and its organizations (MARETTI, 2020).
Thus, methods are available that can be adequate for conflict resolution effectively, satisfying both parties, in search of social pacification and the effective solution tools that differ from each other, and can be applied according to the needs of the parties, welcoming the peculiarities of each conflict. The most well-known and currently used methods are arbitration, negotiation, mediation and conciliation.
3. CONCILIATION, MEDIATION, NEGOTIATION AND ARBITRATION
In the autocomposition process the parties together will build the resolution of their conflicts with the help or not of a third party, in an attempt to resolve the conflicts. While in heterocomposition there will be a decision either by the arbitrator or judge, where the parties will submit to that decision even if it does not meet all their needs. As autocomposition methods we have conciliation, mediation and negotiation.
The negotiation can be understood as an act or an art of negotiation, aiming at an agreement between the parties in relation to the issue that generates the conflict, its main characteristic is in the dialogue developed between the parties, aimed at a amiable solution of the problems between them, without the interference of a third party to impose a decision (FIGUEIRA JUNIOR, 2019).
In this system the parties tend to directly resolve their divergences, negotiating exchanges of advantages and decrease of losses aiming at the result of reciprocal gains acceptable by both parties, as a rule the negotiation will be exercised by the interested parties themselves, but there are no impediments, and may be carried out by a third party, the negotiator, who will represent the interest of the party that appointed him, being able to negotiate the best solution for your representative, the figure of the negotiator is gaining great proportions in the business world (CAHALI, 2018).
The search for consensual resolution of conflicts is increasing, in view of their benefits. Negotiation as a consensual means of resolution has been well valued in the Brazilian legal system (MARCATO; TARTUCE, 2018).
Conciliation can be understood as a process in which an impartial third party, had heard the opinions and wishes of each party and from this information will help in the solution of the conflict, giving suggestions, suggesting proposals that meet the will of interested parties, informing the completion of the process (BARCELLAR, 2012).
Unlike negotiation, conciliation and mediation there will be the participation of a third party facilitator and impartial that will help the parties to find the best solution for their empasses.
Conciliation is recommended for dispute resolution where the parties do not have previous ties, because its purpose is to resolve the conflict and not reestablish or preserve relationships. Historically conciliation is interconnected with the judiciary, through its application in the course of the process, in which the magistrate will promote the attempt at conciliation in a hearing of his own for this purpose (CAHALI, 2018).
Thus, the Code of Civil Procedure, on the consensual means, is available in its Art. 3, § 2º “The State shall promote, whenever possible, the consensual settlement of conflicts” and in its § 3 “Conciliation, mediation and other methods of consensual settlement of conflicts shall be encouraged by judges, lawyers, public defenders and members of the Public Prosecutor’s Office, including in the course of the judicial process”. Also, it brought in Art. 165, of the same legal diploma, the determination of the creation of Judicial Center of Consensual Conflict Resolution (CEJUSCs)[6], by the courts where the hearings will take place thus stimulating autocomposition (BRASIL, 2015).
Mediation, unlike conciliation, seeks to resolve the conflict peacefully with the help of a neutral third party who will mediate the return of communication between the parties, aiming at maintaining and preserving the relationship between the parties (BARCELLAR, 2012).
Thus, there is the differentiation of such institutes, promoted by Luciano Souto Dias and Kamila Cardoso Faria:
Apesar de serem institutos parecidos, a mediação e a conciliação se diferem em aspectos relevantes. Como métodos de solução consensual de conflitos, elas permitem que os interessados dialoguem e que, juntos possam encontrar a melhor solução do conflito, sem a necessidade da imposição de uma decisão por um terceiro. Tanto na mediação quanto na conciliação, tem-se a figura de um terceiro, imparcial, com a função de auxiliar os envolvidos, aquém não cabe resolver o problema, mas exercer um papel de incentivador da solução do conflito. O conciliador tem um papel mais ativo, pois além de conduzir o diálogo, apresenta propostas e sugestões para a solução do conflito. Já o mediador tem uma atuação mais reservada, abstendo-se de propostas ou sugestões, porém, através do seu conhecimento técnico, acompanha o diálogo e atua no sentido de esclarecer aspectos inerentes às questões litigiosas que podem colaborar para que as partes alcancem um consenso (DIAS; FARIA, 2016, p. 27).
Mediation is part of autocompositions methods of a voluntary nature, as recommended by Professor Fernanda Tartuce:
A mediação consiste no meio consensual de abordagem de controvérsias em que alguém imparcial atua para facilitar a comunicação entre os envolvidos e propiciar que eles possam, a partir da percepção ampliada dos meandros da situação controvertida, protagonizar saídas produtivas para os impasses que os envolvem (TARTUCE, 2018, p. 203).
Therefore, in this method of conflict resolution, there will be the participation of a third party who is trained with specific knowledge in relation to the matter being discussed, using techniques to reestablish the communication lost as a result of the disagreement, and assisting stakeholders to formulate the solution to their conflicts.
Mediation aims to promote and facilitate the communication of conflicting parties, and stakeholders can choose this means of solution, because even if there is no conclusion of the agreement, mediation will be successful if communication between those involved is resumed (TARTUCE, 2018).
In view of the crisis in the judiciary experienced in contemporary society, mediation has gained great proportions, starting to be studied in the legal world, seminars and lectures presented on the subject, emerging norms for regularization of such institute, as a legal framework has resolution 125/2010 of the CNJ, and the evaluation brought by the Code of Civil Procedure of 2015, as well as the enactment of Mediation Law No. 13,140 of 2015 (BERTOLI; BUSNELLO, 2017).
With the enactment of Law 13,140 of 2015, the application of mediation was regulated, having rules and procedures for the realization and application of mediation among individuals, as well as conflicts involving public administration (MARETTI, 2020).
Thus, it is concluded that mediation is an institute that can fit conflicts, provided that there is the willingness of the parties and the law allows the use of this instrument, and can resolve both disputes between individuals, as well as conflicts involving private and public administration.
The law in question, provides rules that regulate the adoption of mediation both in the judicial and extrajudicial area, involving rights available or unavailable as long as they are transigable, and may deal with parties or the whole conflict, as well as brought the concept of mediation in its art. 1, “Single paragraph: Mediation is considered the technical activity carried out by an impartial third party without decision-making power, that, chosen or accepted by the parties, assists and encourages them to identify or develop consensual solutions to the controversy.” Thus, mediation is developing as a method capable of making people solve their problems, of their own free will, with the help of a third party, thus increasing the degree of satisfaction, because the solution was built by themselves, because the resolution of the conflict becomes more effective and occurs in less time, benefiting all those involved (BERTOLI; BUSNELLO, 2017).
Arbitration, on the other hand, is a form of mandatory solution, being part of the heterocomposition method, and the solution of the conflict will be made by a decision prepared by a third party or by an arbitration chamber. In arbitration the parties may choose one or more persons through a private agreement, which will decide the dispute, that decision will have the force of judicial judgment, and is available to any able person, provided that the conflicts are related to available property rights (CARMONA, 2009).
As Well explains Alexandre Freitas Camera:
A arbitragem é um processo paraestatal e heterocompositivo de solução de conflitos, há que se verificar quando sua utilização é cabível. Afirma a lei de arbitragem que esta pode ser usada por pessoas capazes quando o conflito versar sobre direitos patrimoniais disponíveis (art.1º). Há que se dizer, assim, que tanto as pessoas jurídicas como as pessoas naturais e capazes podem se valer da arbitragem como meio de solução de litígios (CÂMERA, 2005, p. 178).
Arbitration is an important conflict resolution instrument, which is available to those who choose it to resolve disputes involving property issues, and the resolution will be made by a decision given by an impartial third party, both individuals and legal entities may avail themselves of this instrument.
In 1996, the arbitration gained its own regulation, with Law No. 9,307, a real legal revolution for Brazil in relation to arbitration, with this law the institute gained more legal certainty, removing some obstacles that prevented its development, because with the advent of the mentioned law, the arbitration clause becomes mandatory, and the arbitration decision no longer requires judicial approval, thus allowing the advancement of arbitration in the country (BARCELLAR, 2012).
Law 13,129 of 2015 amended some provisions of Law No. 9,307/96, one of which was the permission of the use of arbitration by direct and indirect public administration bodies, expanding the field of action of arbitration. Although the application of this resolution method has been expanded, it is still restricted to a certain group of litigants, due to the high costs (SILVA, 2019).
Arbitration, negotiation, conciliation, mediation, among others, are developing, because the benefits arising from these methods are evident, as well as the dissatisfaction of the population with the judiciary, who are increasingly seeking more effective solutions, swift and satisfying all involved. It is perceived the progress in the use of these resolution methods, which is also well recommended by the Brazilian doctrine, because some successful experiences prove the effectiveness of these methods.
4. MEDIATION AND ITS PARTICULARITIES
Private mediation is a procedure widely used internationally, especially in the resolution of commercial conflicts (ISOLDI, 2014).
Its development has been accentuated with its regulation elaborated by the United Nations Commissions on International Trade Law (UNCITRAL), the “Model Law”, Model Law on International Commercial Conciliation of 2002, serving as a model for the elaboration of other standards that deal with the same subject (UNCITRAL, 2002).
In Brazil mediation began to have greater attention, with the creation of the National Institute of Mediation and Arbitration (INAMA)[7] in 1991, boosting its study by several institutes, and in 1994, the Mediation Institute (IM)[8], which in 1997 was entitled as the Institute of Mediation and Arbitration of Brazil (IMAB)[9] was created. In the same year, the National Council of Mediation and Arbitration Institutions (CONIMA)[10] was created. The initiative to standardize the theme occurred in 1998 (under Bill 4.827/98, authored by Mrs Zulaiê Cobra). And in 2010, Resolution CNJ No. 125 was published, aiming at the application of adequate means of conflict resolution in the judiciary as well as the parameters of training and practice of conciliators and judicial mediators. However, mediation gained its own norm in 2015, with the enactment of Mediation Law No. 13,140, in the National Congress (BRAGA NETO, 2019).
Another important point that leverages the development of mediation is the Singapore Convention, with 53 signatory countries, aims to unify the practice of international mediation, and facilitate agreements resulting from business mediations at the international level. Brazil recently signed the convention on June 4, 2021, providing high expectations for the expansion of mediation in the country (MINISTÉRIO ECONOMIA, 2021).
With the advent of Mediation Law No. 13,140/2015, the procedure for the application of mediation was regularized both in the judicial and extrajudicial spheres, also specifying the object that may be the subject of mediation, and the principles applied to the institute.
4.1 PRINCIPLES OF MEDIATION
On the principles of mediation Law No. 13,140/2015, provides in its Art. 2º Mediation will be guided by the following principles: I – impartiality of the mediator; II – isonomy between the parties; III – orality; IV – informality; V – autonomy of the will of the parties; VI – search for consensus; VII – confidentiality; VIII – good faith (BRASIL, 2015).
The first principle refers to the impartiality of the mediator, essential for the fair treatment of the parties, because all acts of this third invited to assist in the resolution of the conflict must be equal, being even subject to the rules of impediments and suspicion applied to magistrates, by equalization. The principle of autonomy of the will of the parties is one of the most important, as it recognizes the will, freedom and decision of the parties, as well as their willingness to accept and participate in the mediation process. Mediation is based on the principle of seeking consensus and cooperation between the parties, as it reestablishes communication between the two, encouraging the parties to build their own solution (TARTUCE, 2018).
The principle of informality coordinates the entire mediation procedure that develops to promote dialogue, with informal techniques for communication to develop with tranquility. The principle of orality at all stages of mediation is evident because the re-establishment of the communication is evident. The principle of good faith refers to the participation of the parties in a fair manner, with commitment and mutual respect, as well as equal opportunities for the parties (TARTUCE, 2018).
The principle of confidentiality covers all acts in mediation, one of the attractions for companies to use this method. Being very important for the parties to feel comfortable, and all acts in relation to the information provided by the parties, facts, reports and documents that are part of the mediation process, will be confidential. The mediator is even decemable to serve as a witness, unless the parties authorize it. Such is the importance of confidentiality, that the Mediation Law had its own section to deal with the subject (CAHALI, 2018).
It is perceived that mediation has its peculiarities and can provide those who seek a procedure to solve the empasses that arise in the course of contractual relations, effectively, with speed, and confidentiality. It can be indicated even for the prevention of business conflicts, through dialogue promoting an environment of pacification, establishing communication and preservation of commercial relations.
4.2 BUSINESS MEDIATION
There are two forms of mediation, judicial and extrajudicial. Thus, it will be extrajudicial measurement, also known as private mediation.
The private mediation applied in disputes involving business activity is not only about resolving conflicts, but on reestablishing communication between those involved, thus maintaining the relationship and continuation of the contract.
The out-of-court mediation will take place through the will of the parties to opt for the application of such an institute, where they can choose the mediator, how the mediation will take place, as well as define what the object of the dispute will be and whether it dealt with all or part of the conflict, through the establishment of a mediation clause (BRANDÃO, 2019).
In the Business context, Diego Faleck defines mediation as well:
A mediação empresarial consiste na facilitação, por um terceiro neutro, de negociação para a resolução de disputa, entre partes de relações comerciais. Mediadores não têm o poder de impor uma decisão vinculante. Todavia, a intervenção de mediadores é extremamente eficaz para assistir partes a resolverem disputas em menor tempo, com menor gasto de recursos e com maior preservação de relacionamentos comerciais (FALECK, 2014, p. 263).
The Mediation Model Law, brought in its text, specifications on the application of the institute for the resolution of commercial conflicts, an expression that is not limited to commercial activity, but covering any business activity related to the commercial nature, contractual or not, aiming at simplifying negotiation in commercial conflicts (BRANDÃO, 2019).
In this sense, it is noted that mediation has a contractual legal nature, because through the will of the parties, they stipulate by contract the intervention of a third party that helped them resume the dialogue (BRAGA NETO, 2019).
The choice of mediator is at the discretion of the parties, however it is indicated that they have technical knowledge of the conflicting matter, because the mediator is the facilitator of communication and will conduct the procedure impartially, ensuring balanced participation between the parties, encouraging participants to overcome the barriers that prevent the agreement, always providing the necessary clarifications clearly about the procedure (BRANDÃO, 2019).
The mediation law makes it clear that the participation of a lawyer is optional, according to Art. 10 of the Mediation Law. But the participation of the lawyer may be important, when legally guiding the client or in the event of the agreement, may assist in the drafting of the instrument, and in the event of no agreement, will guide the necessary measures that safeguard the interests of his client.
Thus, Law No. 13,140/2015, provides in article 21 and following how the entire procedure of out-of-court mediation will occur, and may be initiated by contract or direct initiative of one of the parties.
4.3 APPLICATION AND DEVELOPMENT OF BUSINESS MEDIATION
As provided by law, private mediation may begin either with the clause or without a mediation clause. This is observed in Article 22 of the Mediation Law, which provides for the mediation clause, established by contract and must contain term, local, as will be made the choice of mediators and possible penalties, this contract will have a binding effect between the parties (CAHALI, 2018).
This agreement may be established the autonomous clause, or staggered or with the use of mixed-modes in which interested parties may combine sequenced stipulations of the appropriate methods of conflict resolution neg-med-arbit or med-arb, med-jud or neg-med-jud (SIMÕES, 2019).
Already without the prior mediation clause, Art. 16 of the Mediation Law, provides that the parties may request the suspension of the proceedings in which the proceedings have already been filed, for a period sufficient for mediation to take place, or may make the invitation to the other party, promoted by any means of communication describing the object of negotiation, place, and date of the meeting (BRASIL, 2015).
Thus, mediation can be promoted by institutional means, where the parties choose a camera or mediation center, subject to their administrative rules of the organization, or it can be instituted by independent, “ad hoc” means, and the rules of the mediation procedure will be stipulated by the parties themselves (ROSA; ISSA, 2019).
The mediation process can occur in some stages, in the first stage there is presentation of information about the rules and details of how the whole procedure will occur and the mediator attests to its independence, and can be called pre-mediation. In the second stage there is the report of the parties, and the understanding of the expectations of each person involved, and can be designated private or individual meetings (caucus), a tool is used to broaden the relative view of the conflict; in the third stage the mediator had encouraged the parties on the possibilities of conflict solutions, proposal development and negotiations. Finally, the agreement is to be reached if it is effected and must be drawn up at term with all commitments made, with the signature of those involved (TARTUCE, 2012).
Mediation has become a very important instrument to preserve relationships mainly in the business field, the whole procedure with steps that provide the parties to expose their ideas, to exercise their autonomy, on the mantle of confidentiality and need to maintain the contractual relationship for the fulfillment of some obligation, as well as the preservation of the company’s image in the market. Some business experiences that have benefited from mediation have been successful, proving the benefits and effectiveness of business mediation.
5. WOULD MEDIATION BE ADEQUATE AND BENEFICIAL TO RESOLVE BUSINESS CONFLICTS?
In business conflicts, it is possible to use the extrajudicial methods of conflict resolution, provided that there is willingness, as well as the possibility of applying such methods, in view of the peculiarity of each conflict, and what the law on the application of each institute to the specific case provides.
Business conflicts, because they involve a history of interrelationship between those involved, it is recommended the use of mediation, which enables the reestablishment of harmonic coexistence and the preservation of relationships between members when signs of divergence swell, even before the conflict is established, so mediation will have the function of preventing conflicts. How it can be used for pacification, when business conflicts have already been established (CAHALI, 2018).
It is observed that mediation can be applied before the conflict established, as in its occurrence, seeking not only the solution of the conflict, but also the continuity and maintenance of business relations.
Article 3 of the Mediation Law provides that the conflict that occurs over available rights or unavailable rights that admit transaction may be mediated.
The common conflicts faced by companies can be internal or external corporis, arising from commercial or administrative relations, intellectual property contracts, execution of a work, franchised and franchisor relations, and even relationships in family businesses, among other ties arising from business activity (BRAGA NETO, 2019).
Conflicts can arise both in the company itself and in the relationship with third parties, the doctrine classifies these conflicts, whether derived from internal corporate affairs, such as intraorganizational or intra-business (BRAGA NETO, 2015).
In this context, mediation will be intended to resolve disputes between employees, departments, directors, directors and partners, among themselves, the company may use specialized mediation camera services or train its own team, but it is advisable to search for impartial mediators for isonomic treatment of the parties (FREIRE; BRAGA NETO, 2019).
Thus, organizational mediation can also be called corporate mediation, which aims at the re-establishment of internal relations, because if the relationship between employees are not well it can negatively influence the external image of the company, thus preventing the achievement of the objectives that it aims for (SIMÕES, 2019).
This practice in the corporate environment can be related to the implementation of the compliance program, whose objective is to develop organizational policies and codes of conduct, changing the internal culture of the company making it more integral and transparent, in search of the preservation of the company (FREIRE; BRAGA NETO, 2019).
There is currently concern about the integrity and image that the company transmits to the outside world, and mediation can be a tool to be used to preserve the company’s image.
In external business relations, it can be called inter-business mediation, where the mediator will work on elements of reflection and questioning of the interrelationship between entrepreneurs, thus building a peaceful solution, as well as restoring communication between the parties, and maintaining this relationship (BRAGA NETO, 2015).
In the recovery of companies mediation can be applied both in the judicial and extrajudicial recovery system, including the use of conciliation and mediation by Law 14.112 of 2020, which brought significant changes in the Law of 11.101/05, with a section of its own Section, Of the reconciliations and of the prior or incidental mediations to judicial recovery processes, therefore mediation may be applied before the recovery process or in the course of the process, there is also the possibility of applying it in cases that are appealed in the Superior Courts, it is worth mentioning that the deadlines determined by law will not be suspended, except by determination of the judge, or agreed by the parties (FERNANDES, 2021).
However, the law brings two prohibitions to the use of mediation in § 2 of Article 20-B: Conciliation and mediation on the legal nature and classification of claims are forfences, as well as on voting criteria at a general meeting of creditors. Another novelty brought by Article 20-D, of the same legal diploma was the possibility of conducting mediation on digital platforms. This is appropriate in view of the moment experienced in the country, due to the pandemic (BRASIL, 2015).
There is also Recommendation No. 58 of the CNJ of October 22, 2019:
Art. 1º Recomendar a todos os magistrados responsáveis pelo processamento e julgamento dos processos de recuperação empresarial e falências, de varas especializadas ou não, que promovam, sempre que possível, nos termos da Lei no 13.105/2015 e da Lei no 13.140/2015, o uso da mediação, de forma a auxiliar a resolução de todo e qualquer conflito entre o empresário/sociedade, em recuperação ou falidos, e seus credores, fornecedores, sócios, acionistas e terceiros interessados no processo (CONSELHO NACIONAL DE JUSTIÇA, 2019).
The application of mediation in the recovery of companies will bring speed in the formation of the creditors’ framework and efficiency in the negotiation of the recovery plan, and with excellent results (FERNANDES, 2021).
The application of mediation in the commercial sphere can be a great option to avoid, face or resolve business disagreements, and the parties will dialogue with the mediator, a qualified third party, about interests and needs of each interested party, to build the best solution to the conflict, and in the shortest time than they would have if they resorted to the judiciary, since in this area time is money, mediation can solve conflicts effectively and in less time (SIMÕES, 2019).
A good example was the application of mediation in the accident of consumption, in an indemnification program, including extrajudicial indemnification cameras in Brazil, created as a result of air accidents that occurred in 2007 and 2009, the programs were created by the Ministry of Justice under the influence of Diego Faleck, secretary of economic development, the program was based on the autonomy of the parties, communication between the companies and families of the victims. The indemnification program through mediation was a success, serving as parameters for the expansion of the applicability of mediation (TARTUCE, 2012).
A successful experiment was the 447 compensation program, composed of Société Air France (Air France), its insurers (represented by the leading insurer, AXA Corporate Solutions – AXA) and by organs of the National System of Consumer Protection: Public Ministry of the State of Rio de Janeiro (MPE/RJ)[11], Fundation Consumer Protection and Defense Program of Rio de Janeiro (PROCON/RJ)[12] and Secretariat of Economic Law of the Ministry of Justice (SDE/MJ)[13], and the relatives of the victims of the plane crash, which occurred on May 30, 2009, on flight 447 Rio-Paris. With the participation of three mediators, the internal rules with rules and principles were elaborated, and the guidance manual to the participants, sent invitation letters for family members to participate in the opening of the program, a whole about 70 people participated and received compensation. At first the mediators provided all the clarifications and explained about the program, after the family members’ access to the program evaluated the legitimacy of the beneficiaries and the necessary evidence, all doubts were clarified by those involved through communication, taking place both private meetings and joint meetings, after the final meeting was made with the acceptance and signing of the final agreement. The efficiency of the mediation process and the satisfaction of those involved were verified (TARTUCE, 2012).
It is observed that mediation has been stimulated, and timidly gaining great proportions, and can demonstrate efficiency in the resolution of many controversies in various areas of law.
6. EFFECTIVENESS OF THE FINAL MEDIATION AGREEMENT
In the event of conclusion, in the procedure of private mediation, the final term consists of a document written and signed by the parties with extrajudicial enforcement, if there is no spontaneous compliance, the title may be executed judicially forcing the resistant party to comply with the agreed terms.
Thus Law No. 13,140/2015, very specific:
Art. 20. O procedimento de mediação será encerrado com a lavratura do seu termo final, quando for celebrado acordo ou quando não se justificarem novos esforços para a obtenção de consenso, seja por declaração do mediador nesse sentido ou por manifestação de qualquer das partes. Parágrafo único. O termo final de mediação, na hipótese de celebração de acordo, constitui título executivo extrajudicial e, quando homologado judicialmente, título executivo judicial (BRASIL, 2015).
The final term of mediation by having extrajudicial enforcement, promotes security as to the possible non-compliance with the term. However, it can be said that there is a high degree of compliance with the agreements made in the mediation procedure, because the parties themselves are the ones who resolve and build the solution of the conflict jointly, elaborating the terms themselves. Thus there is a greater adoption, because the goal of mediation is to make the parties find the best solution to the problem that afflicts them. Making them both leave satisfied with the agreement which increases the spontaneous fulfillment of the agreement.
7. CHALLENGES OF BUSINESS MEDIATION IN BRAZIL
The first challenge faced by mediation is the search for Brazilian cultural change, because the judicialization of conflicts is the rule, since the use of the judicial route to resolve conflicts lasts for years. It will not be easy to change this culture, but gradually the search for alternative means has intensified in view of the crisis of the judiciary. Another challenge is the ignorance on the part of the market, about the advantages and effectiveness of the procedure, there is also the insecurity in taking advantage of the method, another concern is related to the preparation of mediators to deal with the specificities of business mediation, as well as the adequate training and remuneration of mediators (FREIRE; BRAGA NETO, 2019).
Since there is concern to put important issues in the hands of those who do not have competence to do so, causing a greater injury, so it is important to qualify the mediators in the matter in which they will act and an adequate remuneration for these professionals who will dedicate themselves to mediating the search for the solution of the conflict.
It can be said that society has as its custom avail of judicial protection, placing in the hands of the state-judge, the responsibility of resolving its conflicts. Often for the security of the judicial decision, or for the need for a declaration of law. However, the judiciary cannot meet all those who seek it. So mediation can be a great option to strategically achieve the best solution.
8. FINAL CONSIDERATIONS
This work aimed to analyze out-of-court mediation as an appropriate and effective method in the resolution of business conflicts. Demonstrating that mediation is effective, and its techniques can provide business organizations advantages such as, simplicity of rite, predominance of informality and more flexible rules, solutions that really satisfy everyone involved, saving time and money.
During the research and analysis of consensual methods of dispute resolution, it is observed that mediation is adequate to assist in the management of business conflicts. We know that companies suffer financial impacts with the lack of planning and the slowness of the judiciary. Thus, it was observed that mediation is effective to restore, maintain relations, and manage internal and external conflicts, allowing the continuation of these business relations, which provides the continuity of commercial activity, and its economic and organizational development.
During the research, as explained, there are business conflicts in which mediation was used, and its result was positive, all those involved were satisfied. Certifying that mediation is a great instrument for resolving business disputes, as it aims to provide a space for dialogue, trust, creativity and the identification of alternatives in conflicting situations, and the construction by the parties themselves of sustainable agreements, in a shorter time, with greater cost-benefit in relation to arbitration and the judicial process that has very high costs. Another benefit is confidentiality, because all acts practiced in the mediation process will be confidential, thus preserving the company’s image.
It is noted that there is a greater effectiveness in the implementation of the agreements made at the end of the mediation, because the parties themselves will elaborate the solution of the impasse, making both fulfill their obligations, resulting in mutual satisfaction.
Finally, it is concluded that the use of mediation is adequate and effective to solve business empasses, because the benefits and satisfaction generated by the use of the method have already been proven with Brazilian experiences. Although there are some challenges in the implementation of both mediation and other methods of conflict resolution, they are gradually being overcome, and the development of these methods is expanding even if timidly.
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APPENDIX – FOOTNOTE
3. Brazilian national council of justice.
4. Meio Alternativo de Solução de Conflitos.
5. Sistema Administrativo de Conflitos de internet.
6. Centro judiciários de solução consensual de conflitos.
7. Instituto Nacional de Mediação e Arbitragem.
8. Instituto da Mediação.
9. Instituto da Mediação e Arbitragem do Brasil.
10. Conselho Nacional das Instituições de Mediação e Arbitragem.
11. Ministério Público do Estado do Rio de Janeiro.
12. Programa de Proteção e Defesa do Consumidor.
13. Secretaria de Direito Econômico do Ministério da Justiça.
[1] Master’s degree in Law, Postgraduate in Applied Procedural Law, Bachelor of Law.
[2] Guidance counselor.
Submitted: July, 2021.
Approved: December, 2021.
