The perennial challenge for many ADR transformation projects is that, if any, rules and regulations are required to introduce or catalyse mediation in a jurisdiction. These questions are important because although some forms of ADR can work with limited or no legal foundations there will have to be some sort of mechanism that enforces a mediation settlement agreement in the event of non-compliance.
Having had the pleasure of meeting several Brazilian mediators at a recent conference in Vienna, I have been keenly following the passage of Federal Law no. 13. 140/2015 which advances the legal framework for commercial mediation in the country. The passing of this law is monumental for commercial mediation within a country that has seen tremendous economic growth over the past 25 years with a resultant amount of cases in the courts. With an estimated backlog of 100 million cases across the country, the use of mediation offers one route of decongesting courts. The law authorises judicial and extra-judicial mediation as a means to “develop consensual solutions” for disputes involving individuals and legal entities. Moreover, the law also encourages the use of mediation in disputes involving individuals and public entities (known as ‘self-resolution’ in the law) which will, if fully implemented, inevitably lead to a drop in cases against Government bodies.
As ever, the success of any law or practice direction is in how they are enacted. Even in countries that do not have a statutory mediation law, many have case management directions that encourage the settlement of dispute through ADR (whether these rules are accepted or sufficiently understood is another kettle of fish). Reflecting on the UK’s experience, although there is no express mediation law, under reforms proposed by Lord Woolf in his 1996 Access to Justice report, the Civil Procedure Rules (CPR) of England and Wales (the rules which govern the resolution of civil disputes) were changed in 1999 to encourage courts to advise parties to use an ADR procedure. Since April 2013, the ‘overriding objective’ has been revised by Lord Jackson to enable the court to deal with cases justly and at proportionate cost. These ‘secondary rules’ are often a critical factor in whether mediation initiatives succeed or fail. They are key issues that policymakers have to reflect on to realise the potential of an ADR initiative.
The successful development, regulation and promotion of mediation within a jurisdiction is a substantial undertaking and one that should not be underestimated. A second key issue that is often faced is in relation to the training and accreditation standards of those who mediate. If mediation is to become a fully integrated process within the modern justice system, the quality and competence of those who deliver the services is of critical importance. While the Brazilian law stipulates strict criteria for judicial mediators, there is nothing similar for extra-judicial mediators. In many cases this is a blessing and a curse: On the one hand it allows many individuals with diverse professional backgrounds to act as neutral third parties in similarly diverse disputes. On the other hand, it places a responsibility on local mediation associations to promote high training and quality standards. Thankfully, mediation has many supporters in Brazil who have been championing the cause for some time. It remains to be seen how Brazil will oversee the implementation of mediation. A legal framework is an excellent start but it will have to become part of their judicial and commercial culture for people to understand and seek ADR when possible.