New regulation may contribute to expansion movement

By Silvia Pimentel

The Center of Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada (CAM-CCBC) has already been engaged to administer 12 mediations this year. It is expected that the number of procedures carried out by the end of the year will exceed the 16 mediations initiated in 2023, which involved an average dispute value of R$ 28.5 million and took about four months to resolve. Among the sectors that most opted for mediation during this period were construction, energy, and corporate.

To contribute to the understanding and expansion of this segment, CAM-CCBC launched the new Mediation Rules, aligned with the best market practices and updated to support the increasing use of mediation as an important and promising method of conflict resolution.

The new set of rules for mediation procedures was presented to the market at an event attended by lawyers, mediators, and arbitrators. The event included panels highlighting the opportunities for using mediation, emphasizing its advantages, such as faster resolution and lower costs—both financial and emotional—compared to other methods.

“The new regulation is the result of the Mediation Council’s efforts to seek the best techniques to make mediations increasingly attractive to clients and companies. We believe in cooperation, dialogue, methodology, and the continuous process of developing mediation in Brazil,” said Silvia Rodrigues Pachikoski, vice-president of CAM-CCBC, during the opening of the event. She also mentioned that the institution, which has just celebrated its 45th anniversary, is also beginning the revision of the dispute boards regulation.

“One important factor that has been contributing to the realization of mediations is Administrative Resolution No. 36 of the institution, from 2019, which allows for mediation costs to be deducted from arbitration fees in cases where no agreement is reached between the parties,” highlighted the vice-president of the institution.

New Rules

The main changes and innovations incorporated into the regulations that had been in place since 2016 were presented by Vera Monteiro, president of the CAM-CCBC Mediation Council, who emphasized the institution’s constant pursuit of improving its rules and practices.

One of the modifications concerns the mediation request, which now includes new requirements, such as the names of the lawyers, a brief description of the dispute, an estimate of the value involved, and the proposed language, among others. “The goal is to guide parties who are not yet familiar with mediation and provide the secretariat with the necessary information to proceed with the process,” she explained.

Another innovation is that parties can now specify desirable characteristics for the mediator. This information will be considered by CAM-CCBC when presenting the list and appointing the mediators for the conflict.

Under the new regulations, mediators may request written briefs from participants to present their interests and objectives in the mediation process. Furthermore, it is now mandatory for those attending the mediation to prove their authority to enter into agreements.

Keeping up with technological advances, such as the increasing use of videoconferences, CAM-CCBC included in the new rules the option for an entirely electronic procedure. In-person meetings, which were already part of the previous regulations, remain, but now remote and hybrid meetings are also possible.

Regarding mediation costs, the institution’s new rules update the fees charged for the procedure and introduce tiers for mediations involving amounts between R$ 300 million and over R$ 500 million. Another new feature is that the administration fee, which was previously paid individually, can now be split between the applicant and the respondent, with each party covering 50%.

Opportunities

Present at the event as one of the panel mediators, Alexandre Simões, a member of CAM-CCBC’s Council, emphasized that the new mediation rules also result from feedback gathered from users, mediators, lawyers, and clients about points that could be improved. “The new regulation remains flexible and incorporates the best practices adopted in the market,” he said.

In the view of Nathália Mazzonetto, also a member of CAM-CCBC’s Council, the new regulation was based on listening and dialogue. “The institution is innovative in identifying opportunities and pathways for mediation, even in cases already in adversarial processes,” she noted.

The topic of one of the panels, mediation opportunities, was addressed by lawyer Maria Rita Drummond from Cosan SA, who shared her experience with the participants. “Mediation can occur at any time. The sooner, the better, as the chances of a successful agreement increase. Even if the parties do not reach a consensus at first, mediation is a powerful seed,” she emphasized.

Lawyer and mediator Liana Gordeberg Valdetaro, specialized in conflict resolution, who also participated in the panel, highlighted that mediation can take place at any stage of arbitration. “These are incidental opportunities. It’s important to note that, compared to arbitration, mediation has much lower financial and emotional costs,” she said.

This view was echoed by Caio Campello de Menezes, arbitrator and mediator, who was invited to speak about costs, stages, and the advantages of using mediation. In his presentation, Campello added a key cost to consider: the cost of relationships. “Mediation is the only possibility for maintaining the relationship between the parties,” he emphasized.