Designing a Court-Annexed Mediation Program for Civil Cases in Brazil: Challenges and Opportunities

Pepperdine Dispute Resolution Law Journal Volume 15 | Issue 1 Article 1 8-1-2015 Designing a Court-Annexed Mediation Program for Civil Cases in Brazil: Challenges and Opportunities Fernando Vieira Luiz Follow this and additional works at: https://digitalcommons.pepperdine.edu/drlj Part of the Civil Law Commons, Comparative and Foreign Law Commons, Dispute Resolution and Arbitration Commons, and the Law and Society Commons Recommended Citation Fernando Vieira Luiz, Designing a Court-Annexed Mediation Program for Civil Cases in Brazil: Challenges and Opportunities, 15 Pepp. Disp. Resol. L.J. 1 (2015) Available at: https://digitalcommons.pepperdine.edu/drlj/vol15/iss1/1 This Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Dispute Resolution Law Journal by an authorized editor of Pepperdine Digital Commons. For more information, please contact , . Luiz: Designing a Court-Annexed Mediation Program for Civil Cases in Br [Vol. 15: 1, 2015] Court-Annexed Mediation Program for Civil Cases in Brazil PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL Designing a Court-Annexed Mediation Program for Civil Cases in Brazil: Challenges and Opportunities Fernando Vieira Luiz∗ ABSTRACT In this article, I demonstrate that mediation is an important form of dispute resolution, displaying benefits when compared with adjudication. I try to refine what mediation is by contrasting it with judicial settlement conferences and conciliation. Regarding the ongoing process in Brazil, I state that every society should adapt a mediation program that is attainable for its social-economic and cultural reality. Criticizing the current Brazilian policies, I present the positive and negative aspects of the Resolution No. 125 of the National Council of Justice (CNJ), analyzing a possible program design feasible for the country, focusing on the issues of funding, referral system, and the selection and training of possible mediators. * State Judge in Florianópolis-SC, Brazil; Appellate Judge of the Electoral Appellate Court of Santa Catarina, Brazil. LL.B., Universidade Federal de Santa Catarina (2002), Brazil; LL.M. in Public Law, Universidade Estácio de Sá, Brazil (2012); LL.M. in U.S. Legal Studies (Honors), University of Connecticut School of Law (2014). The author would like to thank Angel Oquendo, Victor Schachter, and Humberto Dalla for their helpful insights on the issue. 1 Published by Pepperdine Digital Commons, 2015 1 Pepperdine Dispute Resolution Law Journal, Vol. 15, Iss. 1 [2015], Art. 1 [Vol. 15: 1, 2015] Court-Annexed Mediation Program for Civil Cases in Brazil PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL I. INTRODUCTION Every citizen is entitled to have access to justice. However, it is not always clear what that means. Usually, it is viewed simply as access to the courts. In other words, everybody has the right to a day in court, where liability will be decided in a given case. However, this rights based approach does not represent the best explanation of access to justice. Access to justice is related to the empowerment of citizens to resolve their own conflicts in a peaceable way. In that sense, access to justice calls for guaranteeing a forum where people can communicate their feelings and the possibility of building together the desirable outcomes. Therefore, the courts are not the only public place where access to justice can be granted and measured, and alternative dispute resolution (ADR) programs also play an important role in accessing this right. If ADR programs are valid ways of promoting access to justice, governments and the courts are required to implement public policies that deliver such programs to citizens. Because “mediation is the most prominent component of a successful ADR program,”1 the courts should give litigants access to this service. In order to achieve these objectives, different courts around the world are creating court-annexed mediation programs.2 The aim of this study is to analyze how these programs should be designed to meet their objectives, specifically in Brazil. Mediation may present some objections both theoretically and in practice. I will address these issues, concluding that despite the difficulties it may present, mediation is a valuable tool for 1. Steve Gizzi, Judging Mediation, 10 JOHN F. KENNEDY U. L. REV. 135, 135 (2004). 2. In 2000, Germany amended its legislation permiting that all German states launch mandatory court-annexed mediation programs. Zivilprozessordnung [ZPO] [Code of Civil Procedure], 2000, § 15. Portugal created its first law on the subject in 2013. Law No. 29/2013. India is creating new court-connected mediation centers, as the Bangalore Mediation Center and Dheli Mediation Center. See generally LAILA T. OLLAPALLY & SHIV KUMAR, BANGALORE MEDIATION CENTRE: MANUAL FOR THE TRAINING OF MEDIATORS (2008). 2 https://digitalcommons.pepperdine.edu/drlj/vol15/iss1/1 2 Luiz: Designing a Court-Annexed Mediation Program for Civil Cases in Br [Vol. 15: 1, 2015] Court-Annexed Mediation Program for Civil Cases in Brazil PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL dispute resolution as long as it is cautiously adapted for the context in which it will be used. Rather than answering questions about court-annexed mediation programs, the core purpose of this article is to raise the questions one must ask when planning such programs. It is not a matter of a right or a wrong answer to each question. Each place has its own culture and idiosyncrasies that will be imprinted on any attempt at institutionalizing mediation through the court system. The main objective here is to show the different alternatives for each step of a program’s creation and the way it can develop to achieve its own goals. In Part II, I outline basic concepts of mediation and the issues raised by scholars as to its benefits and pitfalls. In order to analyze a court-annexed mediation program in Brazil, in Part III I delineate the current state of the art of mediation in Brazil, arguing the dangers of transplanting a foreign system without taking into consideration the cultural diversity and necessity displayed by each country. Also, I work on issues one must address when designing a court-annexed mediation program. Then, I analyze the core questions faced when implementing these programs. I argue that the National Council of Justice (CNJ), the Brazilian institution created to be the policy-maker for the judiciary, is addressing the question in the best way possible, regardless of the merits in creating such programs in Brazil, and I suggest what seems most feasible for Brazilian reality. II. CONCEPTS Courts all over the world are facing a large backlog and the delay in jurisdiction is a direct side effect. One way of trying to control this backlog is through ADR institutions. The courts have usually been concerned with their duty of judging. However, because jud (...truncated)