Mediation Developments in Brazil

Brazil’s courts are overburdened with litigants at numbers that are hard to imagine. The National Council of Justice has reported that Brazilian courts have one hundred and eight million ongoing lawsuits. With a population of 200 million, these numbers suggest that every Brazilian is potentially involved in ongoing litigation. The judicial system is collapsing, and even a simple lawsuit may last 10 years, on average.

Mediation is understood as a potential savior, and the Brazilian legislature has passed significant legislation favoring mediation as a consequence.
The Mediation Act (Act No. 13,140), which came into force in December 2015, regulates mediation in the courts, confidentiality, the basic principles of mediation, and makes the mediation or multi-tier dispute resolution clause enforceable.

The New Civil Procedure Code (Act No. 13, 105), which came into force in March 2016, includes mediation promotion as an obligation of all legal professionals. Although focused on mediation connected to the courts, the code expressly clarifies that even when the parties are sent to mediation by a judge, they can opt for a private mediator or mediation firm. This new code is slowly, but consistently, being utilized by the state courts.

The impacts of this legislation in Brazil are apparent. First, a tsunami of people are interested in learning about mediation. Second, demand for experienced mediators has rapidly increased since the mediation laws were enacted.

By Gabrielle Assmar, Senior Fellow-Brazil, Weinstein International Foundation

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