Introduction
In-court conciliation
Comment
The Portuguese Code of Civil Procedure has always provided for in-court conciliation, with the judge able and even duty-bound to seek conciliation between the parties at the beginning of any hearing. Despite this provision, in-court conciliation in Portugal is at the embryonic stage; it is common for the judge to ask at the beginning of the hearing whether the parties have reached an agreement and to be satisfied with a negative answer. The Portuguese approach to in-court conciliation is far removed from the normal practice in countries such as Germany, Austria and Switzerland. In these countries, judges are given an essential role in the search for consensus and are expected to intervene extensively, including suggesting possible settlements.
This state of affairs, as well as the perception of the great advantages of consensual methods of dispute resolution – in terms of peacemaking and a reduction in litigation and the associated costs – has led to the legislature looking for incentives to promote in-court conciliation. A significant example was the 2013 introduction of a provision that makes it mandatory to formally record the reasons why the parties did not reach an agreement at the preliminary hearing (a procedural management hearing that takes place after the initial pleadings stage).
The success of these measures is unclear; it would appear that nothing substantial has changed in court practice regarding this matter. It could be said that the problem is cultural – the search for consensus solutions is not supported in Portugal. However, mediation has grown in recent years and it has been generating confidence and acceptance as a reliable way of resolving disputes.
"In-court conciliation" is defined as being conducted by the judge hearing the case so that, if there is no agreement, it is this judge who will make the final decision. Therefore, even if it has no evidentiary value, the information exchanged by the parties in the discussion conducted by the judge may affect the decision. Even where the rules provide that such discussions cannot be considered, it is impossible to erase from a person's memory what they have heard. This particular feature has been cited as the main reason why in-court conciliation does not allow an environment of total transparency and open play, as happens in mediation where confidentiality is a golden rule. However, in in-court conciliation, the information that the parties exchange will not be protected. This is said to be one of the possible limits, if not the main limit, on the success of in-court conciliation.
There is another risk that results from the fact the discussions are conducted by the person with decision-making powers: potential pressure on the parties. It has been documented that judges who are also interested in a resolution of the conflict – because this allows them to free themselves from a hearing case – may exert an unfair influence on the parties to obtain the agreement, giving the impression that if the party does not accept the agreement, it may be prejudiced in the final decision. The perception of inequality or injustice may be latent but it is dangerous for the legitimacy of the judgment. Therefore, an awareness that there is pressure on the parties is essential for the judge to consider when conducting attempts to reach an agreement in a fair way.
Mediation is popular because it has been implemented based on the understanding that mediators must have specific, lengthy and careful training. It is recognised that the skills required to do this work successfully are not innate; they require training and practice. In contrast, in in-court conciliation, the judges still have no training in negotiation or mediation techniques that would enable them to conciliate in a professional manner.
The aforementioned discussion casts doubt on the viability and legitimacy of in-court conciliation conducted by judges, at least without first carefully considering its methods, assessing its risks and properly preparing judges to conduct such discussions.
Therefore, it can be argued that, unlike mediation, judicial conciliation in Portugal will still need reflection, definition and training before it can be widely used. It may be a good thing that in-court conciliation is currently only infrequently used – perhaps a sign of a keen sense of justice on the part of Portuguese judges.
For further information on this topic please contact Mariana França Gouveia at PLMJ by telephone (+351 213 197 300) or email ([email protected]). PLMJ website can be accessed at www.plmj.com.