I LEGAL FRAMEWORK OF CIVIL AND COMMERCIAL MEDIATION IN PORTUGAL: MEDIATION CLAUSE AND PROCESS

  1. INTRODUCTION

The legislative trend of reducing the involvement of courts in the justice system has progressively extended mediation to a number of legal areas, with the firm intent of turning this mechanism into a valid and effective dispute resolution alternative.

Mediation can be public or private and makes it possible for one or several parties in dispute to voluntarily reach an agreement with the participation of one or more conflict mediators.

On the other hand, the mediator must act in accordance with a set of guiding principles; the purpose of these principles is to enable the parties to reach an agreement over their dispute, agreement which the parties accept as their own rather than as an agreement imposed or created by a third party.

Public mediation in the field of Minors and Family Law, Criminal Law and Labor Law is already set out in Portuguese law, as does civil mediation, which was already established for proceedings that could be submitted to justices of the peace and to mediation set out in articles 249-A to 249-C of the Civil Procedure Code.

Law No. 29/2013 of 19 April, which will enter into force on 20 May 2013, lays down the general principles applicable to mediation in Portugal, as well as the legal framework of public and private civil and commercial mediation and of mediators.

  1. GENERAL MEDIATION PRINCIPLES

One of the essential characteristics of mediation is the willingness of its process. Submitting the dispute to mediation depends on the will and consent of the parties. As a result of this willingness, the parties may, at any time during the mediation process, either together or individually, revoke their consent to participate in the said process, that is, withdraw from the process.

Differently from what happens in judicial proceedings, the mediation process is of a confidential nature and the information obtained in the course of the mediation process must be kept confidential by the conflict mediator. On the other hand, use of the mediation process is without prejudice to the right of the parties to resort to court or to arbitration to settle the pending dispute, however, the content of mediation sessions, cannot, as a rule, be assessed by the court or in the context of an arbitration procedure.

In this connection, reference should be made to the principle of enforcement. The enforceability granted to the mediation agreement without the need for court approval is a legislative innovation. Indeed, the mediation agreement (i) relating to a dispute that may be the subject of mediation and for which no court approval is required by law; (ii) in which the parties thereto have the necessary capacity to enter into it; (iii) reached through mediation conducted in accordance with the terms set out in the law; (iv) the content is not against the public order; (v) conducted with the intervention of a conflict mediator registered with the conflict mediators list drawn up by the Ministry of Justice, is enforceable.

Additionally, mediation agreements reached by mediation in another EU Member State are also enforceable, provided that points (i) and (iv) above are complied with and provided that the laws of such Member State also consider the mediation agreement enforceable.

In addition to the guiding principles referred to above, the principles of equality, impartiality, independence, competence and liability also apply to mediation processes and to the intervention of mediators.

  1. SCOPE OF THE CIVIL AND COMMERCIAL MEDIATION AND THE MEDIATION AGREEMENT

The framework of civil and commercial mediation, now established, applies to the mediation of disputes on civil and commercial matters conducted in Portugal, with the express exclusion of all disputes that can be the subject to family, labor and criminal mediation.

Disputes falling within the scope of the civil or commercial matters, relating to interests of a patrimonial nature can always be the subject to mediation under this law. Where the disputes do not relate to interests of a patrimonial nature, the dispute can only be the subject to mediation, if the parties are entitled to settle the disputed right; accordingly, disputes arising from the discussion of non-derogable rights are, in general, excluded from the scope of this law.

In a contract, the parties thereto may establish that any disputes possibly arising from their legal relation be the subject to mediation by establishing a mediation clause. The mediation clause shall be executed in writing and shall be deemed null and void in case this formal requirement is not fulfilled.

The use of civil or commercial mediation can be provided by means of a mediation clause in relation to commercial and civil contracts that the parties may enter into. This clause shall set out the rules of operation of the mediation, within the limits of the law, and the consequences arising from the absence of an agreement concerning the mediation process.

It should be noted that the mediation is without prejudice to the right of parties to resort to courts or arbitration being the parties allowed to provide in the contract that in case mediation fails, they may accessorily resort to court or arbitration.

  1. PRE-JUDICIAL MEDIATION

In line with articles 249-A to 249-C of the Civil Procedure Code (introduced by Law No. 29/2009 of 29 June), repealed and replaced by this law, the possibility to resort to pre-judicial mediation is established.

The main effect of resorting to pre-judicial mediation is the suspension of the expiration and lapse periods running from the date of signature of the mediation protocol or, in the case of public mediation, of the date in which all parties have agreed to the mediation. These periods shall only start running again with the conclusion of the mediation process brought about (i) by the refusal of either party to continue with the process, (ii) the end of the maximum periods allowed for the process or (iii) when the mediator determines the end of the process.

For the purposes of the suspension of the periods referred to above, the mediator shall issue a document evidencing certain mandatory legal requirements, such as the date of signature of the mediation protocol, the form of conclusion of the process and the date of conclusion thereof.

Even where the mediation agreement is not required to be approved by the court, the parties may still request it together before the court having jurisdiction ratione materiae; this request has an urgent character and will be decided upon without any need for prior distribution of the case. In case of non-approval, the agreement does not take effect and will be returned to the parties, which can, within 10 days thereafter, submit a new mediation agreement to the court for approval.

  1. MEDIATION PROCESS

The mediation process begins with a pre-mediation session of an informative nature, at which the mediator explains how the mediation functions and the rules of the process.

Should the parties agree to go ahead with the mediation process, they shall sign a mediation protocol, setting out a number of legally required aspects, such as the rules of process agreed on by the parties and the mediator, the mediation process time-table and the maximum duration of the mediation, which can later be changed.

It is also for the parties to appoint one or several mediators. Although the parties are not required to appoint a representative, the parties may attend the mediation process in person or be represented by lawyers, trainee-lawyers or para-legals and may also be accompanied by other technical personnel, provided the other party does not object.

The mediation process ends when: (i) the parties reach an agreement; (ii) either party withdraws from the process; (iii) the conflict mediator so decides, providing the reasons therefore; (iv) it is not possible to reach an agreement; or (vi) the maximum duration of the process has been exceeded.

The content of the agreement is freely established by the parties and should be put down in writing and signed by the parties and the mediator.

  1. CONCLUSION

The enforceability of the agreement reached in the context of the mediation without the need for court approval, the confidentiality of the mediation sessions, the suspension of the limitation periods and the possibility that the parties have to choose one or several mediators, are traits which will certainly establish the mediation process as a real alternative to the existing dispute settlement solutions.

The establishment of a specific scheme of civil and commercial mediation makes it possible to look at mediation as a valid and effective alternative dispute resolution mechanism in these areas.

II NATIONAL LEGISLATION

Decree-Law No. 44/2013, D.R. (Portuguese official gazette) No. 64, Series I of 2013-04-02

Lays down the legal framework applicable to the aviation work activity, bringing it into line with the provisions of Decree-Law No. 92/2010 of 26 July, which transposed Directive No. 2006/123/EC of the European Parliament and of the Council of 12 December 2006, on services in the internal market.

Portaria (ordinance) No. 145/2013. D.R. (Portuguese official gazette) No. 69, Series I of 2013-04-09

Approving the annual remuneration rate of the deferral of extra-costs with the CMEC (Costs of Maintenance of Contractual Balance), and the annual remuneration rate of the deferral of extra-costs with the CAE (Power Purchase Agreements).

Notice (excerpt) No. 4734/2013. D.R. (Portuguese official gazette) No. 69, Series II of 2013 -04-09

Exchange rates adopted for consular fees to be charged from 1 April 2013.

Resolution of the Council of Ministers No. 23/2013. D.R. (Portuguese official gazette) No. 70, Series I of 2013 -04-10

Approving the distribution of compensation for the various undertaking supplying public services, for the current year.

Decree-Law No. 49/2013. D.R. (Portuguese official gazette) No. 71, Series I of 2013-04-11

Amending for the first time Decree-Law No. 10/2013 of 25 January, setting out the legal framework of sport companies applying to sport clubs that want to participate in professional sport competitions.

Decree-Law No. 50/2013. D.R. (Portuguese official gazette) No. 74, Series I of 2013-04-16

Laying down a new legal framework of the supply, sale and consumption of alcoholic beverages in public places and places open to the public.

Law No. 29/2013, D.R. (Portuguese official gazette) No. 77, Series I of 2013-04-19

Setting out the general principles applicable to mediation conducted in Portugal, as well as the legal frameworks of civil and commercial mediation, mediators and public mediation.

Portaria (Ordinance) No. 160/2013, D.R. (Portuguese official gazette) No. 79, Series I of 2013-04-23

Regulating the use and prior certification of accounting software to which article 123 paragraph 9 of the Corporate Income Tax Code refers, as well as the issue of documents by uncertified equipment or program.

Portaria (Ordinance) No. 161/2013, D.R. (Portuguese official gazette) No. 79, Series I of 2013-04-23

Setting out the form of compliance with the obligation to report to the Tax and Customs Authority the transport document details, provided for in the legal framework of goods in circulation, delaying the date of entry into force until 1 June 2013.

III JURISPRUDÊNCIA NACIO NAL

Judgment of the Supreme Court of Justice of 2013-04-24

Checks – Forgery of Document

In this judgment, the Supreme Court of Justice ruled that the drawer of a check who writes on the same a date beyond the date of issue, and who in another written document signed by him, asks the bank not to pay, falsely alleging that the same was lost, was taken from him or has disappeared, to obtain the result sought, commits the type of crime of «forgery of document», provided for in paragraph b) (as amended by Decree-Law No. 48/95, of 15 March), currently paragraph d) (as amended by Law 59/2007 of 4 September), of No. 1 of article 256 of the Criminal Code.

Judgment of the Constitutional Court of 2013-04-22

Declaring unconstitutional, with general binding force, the rule of article 29 of Law No. 66-B/2012 of 31 December; declaring unconstitutional the rule of article 31 of Law No.66-B/2012, of 31 December, as it applied to the provisions of article 29 of such Law to teaching and research contracts; declaring unconstitutional, with general binding force, the rule of article 77 of Law No. 66-B/2012 of 31 December; declaring unconstitutional, with general binding force, the rule of article 117(1) of Law No. 66-B/2012, of 31 December; not declaring unconstitutional the rules of articles 27, 45, 78, 186 (the part amending articles 68, 78 and 85 and adding article 68 –A of the Personal Income Tax Code) and 187 of Law No. 66-B/2012 of 31 December (2013 State Budget Law).