Appropriate methods for conflict resolution are becoming increasingly relevant in the national scenario of alternatives available for dispute resolution. These methods include mediation and conciliation, governed by the Law 13.140/15. In addition, the Article165 of the Code of Civil Procedure (CPC) brings a basic concept by distinguishing the two techniques.
Regardless of the legal conception, the nature of the conflict may favor the adoption of one of the alternatives. Conciliation is usually indicated for situations where the parties do not have personal relationships, which means that the object of the conflict is punctual and there is no past relationships that needs to be harmonized before discussion about the conflict.
Conciliation, thus, must be used when the parties do not have a previous relationship, as occurs in consumer relations, in which there is acquisition of a product or service, default of payment, the consequent registration of the consumer in credit protection agencies and, subsequently, the possibility of debt negotiation.
It is also common to adopt conciliation in consumer relations involving the airline industry, in cases of unjustified cancellation or delays and in cases of baggage loss.
Mediation, on the other hand, is indicated for cases in which the parties have a previous bond, such as in situations where there is a conflict between partners involving business matters. This is because the goal of mediation is to restore communication between the parties involved and enable the construction of a solution.
Mediation, therefore, allows to mitigate possible personal disagreements and resolve the existing conflict in order to re-establish the relationship in the future, if possible and necessary.
With regard to mediation, Law 13.140/15 establishes some guiding principles:
- impartiality of the mediator;
- isonomy between the parties;
- autonomy of the parties' will;
- search for consensus;
- confidentiality; and
- good faith.
The mediators, an impartial third party, have no decision-making power. They play an important role of encouraging the parties to identify or develop consensual solutions to the controversy. In other words, the mediator aims to attract the trust of those involved by stimulating dialogue, understanding the needs of the parties, assisting them in understanding each other's reasons and leading the situation so that the parties themselves can reach a resolution.
It is also worth mentioning the principle of "search for consensus", which does not limit mediation to mere "agreements". Based on this principle, the parties have the chance to know better the controversies they discuss and, as far as possible, strengthen the bond between them so that they can resolve the issue through dialogue.
The mediator, in such a case, shall ensure clear communication between the parties and lay down rules so that the negotiation can be carried out with the necessary frankness. In this way, the parties must be able to present their arguments and objectives fluidly, reach a consensus and avoid a judicial dispute.
The mediation process, when well carried out, can bring numerous advantages, such as flexibility, speed, and reduction of direct and indirect expenses with the conflict – compared to a judicial or arbitration process. In addition, mediation creates an environment more conducive to the maintenance of personal and commercial relationships.
In the business environment, mediation can be used both in an "intraorganizational" way (to resolve disputes involving employees, departments, directors, or partners) to harmonize relations between the company and the outside world.
Business mediation has two aspects: preventive, since it aims to anticipate situations of conflict, and resolutive, which proposes solutions to situations in which there is conflict established.
The confidentiality of dealings is also important for companies, especially for the preservation of the image and security of sensitive information.
Business mediation has been getting prominence since the covid-19 pandemic period, because of the economic crisis generated, which involved companies, employees, suppliers, and the market itself.
Given this scenario, many companies found in mediation a way to resolve conflicts and avoid even greater financial impacts – especially considering that, for much of the period, judicial deadlines were suspended and, therefore, access to justice became even slower.
Therefore, the pandemic indirectly helped to demystify mediation and expanded access to appropriate conflict resolution methods.
To meet the increased demand, it was necessary to implement technological solutions that would adapt the application of these alternative methods to the reality of that period, especially regarding to social isolation norms.
Renowned arbitral institutions, such as International Chamber of Commerce (ICC) and the Chartered Institute of Arbitrators (CIARb), published guides with practical recommendations to mitigate the effects of the pandemic, suggesting changes that would adapt the processes to the new remote reality.
In Brazil, the Chamber of Mediation and Business Arbitration (Camarb) issued the Resolution 15/20, which determined the suspension of face-to-face activities, prioritizing virtual meetings.
The pandemic emphasized preventive and collaborative action to the detriment of conflict and antagonism, which, in a way, was the posture adopted most of the time to face conflicts in the country.
The modernization of the methods brought celerity, practicality and cost containment. Negotiation meetings in a virtual environment as a rule tends to remain, even with the end of social isolation measures.
Thus, it is important to prioritize mediation as a measure of conflict resolution. The method allows optimizing the treatment of disagreements and solving them more efficiently because of the existence of the mediators. With them, it is possible to establish a better dialogue between the parties and, consequently, to reach consensus.