On May 18th, 2013 the Law nr. 29/2013 concerning new general principles applicable to mediation conducted in Portugal and the legal regime for civil and commercial mediation entered into force.
This new set of rules is intended to ease the flow of lawsuits piling up at the Portuguese courts and is another step in the reformation process Portugal is undertaking among the Judiciary, as recommended by the European Commission and other bodies.
Besides the traditional principles of quality, impartiality and independence, Law nr. 29/2013 has given more structure to other principles also applicable to mediation; For the sake of consistency, this article has categorized the principles in the following keywords:
During the mediation proceedings the parties can at any time, together or unilaterally, revoke their consent to participate in the mediation proceedings.
The mediation proceedings are confidential, insomuch that the mediator has to maintain under secrecy all the information gathered during the mediation proceedings and cannot use them to his/her own benefit or to any third party’s benefit. The mediator is also subject to the duty of confidentiality towards a party in the proceedings with regards to confidential information disclosed by another party.
The duty of confidentiality concerning the information on the content of the mediation can only cease due to reasons of public order, namely to ensure the protection of higher interests of a minor; to safeguard the protection of any person’s physical or psychic well-being.
Except in these cases or with respect to the settlement reached, the content of the mediation sessions cannot be taken into consideration as evidence in court proceedings or arbitral proceedings.
Mediation settlements are enforceable without the requirement of court recognition, provided that:
- A dispute mediator from the official list of the Ministry of Justice has participated;
- Claims can be subject to mediation and which the law does not expressly require court recognition; and
- Settlement is reached under the provisions of the existing legal mediation framework and its content does not go against public order.
Claims subject to civil and commercial mediation
Claims of a civil or commercial nature can be subject to civil and commercial mediation if they encompass interests of an economic nature.
Claims that do not encompass interests of an economic nature can still be subject to civil and commercial mediation, as long as the parties may reach a transaction on the disputed object/right.
The parties may include in the underlying contract a clause or agreement stating that any dispute arising out of or in connection with that contractual relationship shall be referred to mediation.
That clause or agreement shall be made in writing; the term “in writing” means that the clause or agreement must be in a written document signed by the parties, in an exchange of letters, telegrams, facsimile or other means of telecommunications of a written nature, including electronic means of communication.
Pre -judicial mediation and suspension of time limits
Prior to the submission of a claim to court, the parties have recourse to mediation in order to resolve their disputes.
The recourse to mediation suspends the statutes of limitations as from the date on which the mediation protocol was signed.
Also at any time the Parties or the Judge (except if one of the Parties refuses it) can suspend the court proceedings in order to start mediation.
Mediation conducted in another Member State of the EU
A mediation settlement obtained in another Member State of the EU is enforceable under Portuguese law, provided that:
- its content does not go against public order;
- it concerns a claim that can be subject to mediation according to Portuguese law and which the law does not expressly requires court recognition; and
- the mediation rules of that Member State of the EU also render it enforceable.
Code of Conduct
As far as mediator’s deontology is concerned, the law adopts the European Code of Conduct for Mediators as approved by the European Commission and refers that mediators are bound to it.
Mediation proceedings and formalities
Concerning the mediation proceedings per se, the Law has done away with much red-tape, setting the legal rules for mediation to a new record minimum.
As for the beginning of the proceedings, the agreement of the parties to start the mediation proceedings is made by means of signing a mediation protocol.
The mediation protocol is signed by the parties and by the mediator and shall include:
- The identification of the parties;
- The identification and domicile of the mediator and, if it is the case, of the mediation institution;
- The declaration of consent signed by the parties;
- The declaration of compliance of the parties and the mediator with the principle of confidentiality;
- A brief of the claim;
- The procedural rules of the mediation agreed upon by the parties and the mediator;
- The schedule of the mediation proceedings and the maximum time limit of the mediation, subject to future modifications;
- The agreement on the mediator’s fees; and
- The date.
The mediation proceedings terminate when:
- A settlement is reached between the parties;
- One of the parties desists;
- The mediator, so decides based on reasoned grounds;
- It is considered impossible to reach a settlement;
- The maximum time limit of the proceedings is reached, including further extensions of that limit.
Concerning the optimal result, both the mediation settlement and the contents of the settlement are freely set out by the parties and must be written and signed by the parties and the mediator.