Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

The Mediation Law establishes no mandatory accreditation for extrajudicial mediators. For judicial mediators, there is the requirement of completing a course (40 hours of theoretical classes and 60 hours of practice under supervision). The course should be accredited by a court. The mediator is required to be enlisted at each jurisdiction in which he or she seeks to practise judicial mediation. Each court might create other requirements, within its own jurisdiction.

Besides the official mandatory enlistment by courts, the National Council of Justice registers mediators nationally on its website. However, this does not work as an accreditation, but as a list of professionals, with their credentials, expertise and contact information. There are also private accreditations, such as the Accreditation for Portuguese-speaking Mediators Institute. However, this is not mandatory. There is no requirement for continuing professional development or continuing professional education.

Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

Mediation in Brazil is always confidential. Mediators are not allowed to share information discussed during sessions. There is one exception: the mediator should inform the authorities of any crime.

They cannot act as witness or arbitrator in any judicial or arbitration proceedings regarding conflicts in which he or she has been a mediator. In addition, the mediator is prevented from advising, representing or sponsoring any party for a period of one year from the end of the last hearing at which he or she served.

Mediators are treated as public servants for any criminal effect. There are crimes that only public servants can commit.

There is no mandatory professional liability insurance.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

In private mediation it is common. The main terms would address the following: scope of the mediator’s work, place where mediation will take place, costs of the procedure and how the payment will be divided between the parties, term and number of sessions contracted, form of contract renewal, parties’ responsibilities and, in some cases, despite the law, an additional fine for breach of confidentiality either by the mediator or by one of the parties.

Appointment

How are mediators appointed?

Article 22 of the Law of Mediation states that in extrajudicial mediation there should be clear contractual criteria regarding the appointment of mediators. In the absence of an express provision in a contract, the law provides that there should be a list with five different professionals, with their names, contact information and references. The invited party shall choose one of the five mediators. If in five days no one has been chosen, the first person on the list will be the mediator. Article 4 of the same law states that courts can appoint mediators, who usually come from court lists.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

The first principle of the Law of Mediation is the impartiality of the mediator (article 2, I). Furthermore, articles 5, 6 and 7 establish several requirements for mediators regarding possible conflicts of interests. Article 6 states that mediators are under the same norms as judges regarding conflict of interests. This means that the rules in article 144 of the Civil Procedure Code also apply to mediators. For instance, there is conflict of interests for mediators when they have worked before as a lawyer for any of the parties, or if they are related to any of the parties or lawyers or even when they have any interest in the result of the mediation. The mediator cannot work for any of the parties within a year of the last mediation session. Lastly, the mediator cannot work as an arbitrator or serve as witness on the case he or she worked on as mediator.

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

In private practice, mediators fees are negotiable. Usually there is an hourly rate. According to research by FGV professor Daniela Gabay, the hourly rate for mediations in 2017 ranged from 350 to 2,000 reais according to the value discussed.

Judicial mediations are pro bono. There are discussions occurring on public fees for public mediations that happen at the mediation centres from courts. For more information, see https://www.aasp.org.br/em-pauta/mediacao-empresarial-em-numeros-onde-estamos-e-para-onde-vamos/.