On June 2, 2015, the Brazilian Senate approved on a statute on judicial and extrajudicial Mediation (“Mediation Act”). The text in Portuguese is available here.
The purpose of the Mediation Act is to regulate and foster a practice that for years has been used in several fields. The wording is in line with the new legislative culture focused on consensual dispute resolution between the parties, adopted especially by the New Brazilian Code of Civil Procedure (“NCPC”).
The project has just three chapters that can be divided into the following subjects: (i) procedural aspects of mediation; (ii) mediation involving state entities, and (iv) final and transition provisions.
On the interaction of the Mediation Act with other pieces of legislation, it is possible to foresee two potential controversies. The first is the provision of article 23, which determines the suspension of the arbitration or judicial proceedings in cases where the parties undertook to refrain from starting any procedure until the fulfillment of certain conditions, such as, for instance, carrying out a mediation.
Another potential controversy is the omission of the Mediation Act as regards the legal impediment provided by article 167, paragraph 5 of the New Brazilian Civil Procedure Code, which shall come into force next year: that judicial mediators cannot act as lawyers in courts where they act as mediators. This impediment does not apply to out-of court mediators. In the opinion of some scholars, considering that the Mediation Act is a statute of a special nature, it should prevail over the NCPC, which contains general provisions.
The Mediation bill, voted on an emergency basis in the Senate, has yet to be enacted by the president before it may enter into force.