The way some countries resolve conflicts has changed considerably in the last few years. New methods of alternative dispute resolutions (ADRs) have been keenly discussed by well-known professors, neutrals and interested people from different areas of expertise in the most famous institutions and universities all over the world.
This scenario is evidence of an emerging worldwide culture of consensus, where different conflicts will require different approaches to optimize clients’ satisfaction. Such change is necessary not only to seek the experience of pacification or even to reduce the incredibly high numbers of lawsuits which overburden the Courts, but especially because it is economically rational.
A faster and less costly process which enables parties to move on and reach their own solution is definitely much more efficient than any adjudicated decision although well-grounded in the law. This is the mediation process: a voluntary and economic way to resolve business disputes facilitated by a third-party mediator who will help parties to reestablish their communication and possibly reach an agreement.
Mediation has not been created and developed to be a cure-all. One must analyze whether mediation makes sense for the case involved. A good start is to understand the reason why the conflict could not be solved by the parties beforehand. Any unresolved issue with a gap in communication, unbalanced economic interests or an underlying reason such as a psychological background might be good candidates for mediation.
Mediation is definitely not suitable for claims in which the debtor delays its payments to gain time and money. In these cases, he will probably never be committed in a mediation process.
Even with the growth of mediation in Brazil and all over the world, some companies, lawyers, negotiators, judges and arbitrators are unfamiliar with this procedure and, as a consequence, do not know exactly what mediation means, what the procedure involves, which are its goals and – last but not least – which are the parties’ roles. The parties, lawyers and the mediator play different roles during the process which are absolutely relevant for the procedure’s success and efficiency.
The selection of the mediator is another key point. Parties and lawyers need a real mediator to ensure efficiency in the process, which means an experienced professional in the mediation area, well-trained and with strong mediation skills. There is no predefined formula to choose the best one for a case, but to know his/her background and track records, as well as if he or she is endorsed by a Mediation Chamber or a specialized institution, are cautions to be carefully adopted when managing conflicts. There are several well-known and recognized business mediators in Brazil and the prevailing question is why some of them do not take part in the most important cases widely covered by the media.
In a globalized world, whether right or wrong, winner or loser, to have success or to fail sometimes does not mean anything. A supplier maintained during the accomplishment of the work, a long-lasting business relationship preserved or even the implementation of a partnership phase-out program can represent much more in terms of efficiency and economy to the company than months and months waiting for an adjudicated decision.
I am not just an enthusiast, I am a real believer and an effective user of the business mediation tool in my day-to-day cases dealing with domestic and cross-border transactions. As a matter of fact, business mediation envisages a change of culture, which takes time and demands planning to disseminate the idea to universities, companies and lawyers. Only time will tell. I hope the future will bring us as many innovative and alternative dispute resolutions as possible for the increasingly complex business environment that we live in today
Patricia Freitas Fuoco was consultant at Pacheco Neto Sanden Teisseire Law Firm.