The use of consensual methods – such as negotiation, conciliation, mediation, arbitration and dispute boards – it is increasingly appropriate to resolve and prevent disputes, given the congestion of demands in the judiciary – which often lags more slowly than guarantees the realization of rights.

The adoption of these methods has been recommended and even stimulated by the Judiciary itself,[1] by the Legislative Power[2] and the National Council of Justice (CNJ)[3] as the first and best option for conflict resolution.

Its use gives greater efficiency, helps to reduce the number of legal disputes in the process, unburdening the judiciary, which, in this way, can hold on to conflicts in which litigation persists even after attempts at conciliation or whose judicial assessment is mandatory.

The use of these methods, however, is not a consensus. The culture of litigation and judicialization so deeply rooted in our society is one of the main obstacles. The view that a third party, impartial, with decision-making power over the conflict, - the judge –, would be the only one capable of ensuring a "fair decision" and guarantees the balance between the parties is still very strong.

This idea often departs from false premises, because not always a decision given by a third party promotes the pacification of the conflict. It often does not even serve the interests of those involved in the dispute.

In this sense, there are several instruments that can be used to make consensual methods achieve an appropriate result that accommodates the interests involved. The representation of both parties by lawyer and judicial approval of an agreement concluded are examples of these tools.

In the case of representation by lawyer, it should be considered that the posture of this professional in an extrajudicial negotiation differs greatly from that expressed before a court, where the lawyer assumes a more combative stance.

In an out-of-court negotiation, the parties are protagonists of their own interests. The lawyer should be more collaborative and provide legal advice to accommodate the interests at stake until they reach a consensus.

Lawyers, in this situation, should seek to establish a more empathetic, respectful and productive dialogue, in order to create an environment that both parties are able to expose their emotions, present their interests clearly and, in the end, reach an agreement.

In this sense, it is possible to stipulate that the main attributions of the lawyer in the application of a consensual method are:

  • indicate the most appropriate negotiation method for the situation.
  • understand the real interests and needs of the client.
  • ensure that there are no illegalities in the procedure.
  • ensure the principles of good faith, isonomy between the parties, autonomy of the parties, among others.
  • provide the client with all the necessary information so that his interests are preserved, clarifying any doubts throughout the procedure; and
  • contribute to the decision making, helping the client to reach an informed, conscious and favorable solution for both parties.

Therefore, it is perceived that lawyers not only can but should work to alleviate any imbalances between the parties, arising from social, legal or even information asymmetry. The parties must search and hire a qualified lawyer with experience in consensual methods, otherwise the procedure will end up being misplaced.

With regard to the submission of the out-of-court agreement for the approval of the Judiciary, the only requirement is that the subject matter of the out-of-court agreement corresponds to available rights.

If the out-of-court agreement involves the interest of minors under 18 years and/or incapable, however, the document only produces legal effects after its approval by the Judiciary, because, in this case, there is the prior intervention of the Public Prosecutor's Office as custus legis, in accordance with the Article 178 of the Code of Civil Procedure.

As much as judicial approval is not mandatory in relation to agreements that do not involve the interest of minors and/or incapacitated persons, in accordance with articles 487 and 515, III, of the Code of Civil Procedure, there is resolution of the merits in cases where the judge ratifies the transaction. Therefore, the judicial decision means the existence of res judicata and represents judicial enforcement, which brings greater legal certainty to the signatory parties, avoiding future questioning and the perpetuation of disputes.

In order to judicially ratify an out-of-court agreement, there is no need to have a previous procedure, it is enough to submit a simple petition, signed by the parties, represented by their respective lawyers, in the Judicial Centers for Dispute Settlement and Citizenship (“Cejuscs” in Brazil) or, in their absence, the local civil courts . This is a pre-procedural phase in which there is no dispute brought.

The agreements, in these cases, are submitted directly to the magistrate – except when it is mandatory the intervention of the Public Prosecutor –, who may or may not subpoena the parties to provide clarifications, analyze the formal aspects of the agreement and, finally, ratify it.

It is also worth adding that this procedure of judicial approvar, in general, lasts days or a few months, a short time when compared to the average time of a lawsuit – approximately five and a half years.[4]

Brought that, the consensual methods and the use of the appropriate tools for each case allow to strengthen trust between the parties to the dispute in order to reach a beneficial, fast and efficient solution. It is an important resource that greatly contributes to avoid the bureaucratization of the judiciary, reaffirming the exercise of the citizenship by the parties.


[1] Article 3 and Articles 165 to 175 of the Code of Civil Procedure.

[2] Law 13.140/15 (Mediation Law).

[3] Resolution 125/10 of the National Council of Justice, which created the Permanent Centers of Consensual Methods of Conflict Resolution, the Judicial Centers for Conflict Resolution and Citizenship and also standardized the training courses of the conciliator and mediator.

[4] Justice in Numbers 2021. National Council of Justice (CNJ). Brasilia: CNJ, 2021.