Mediation has innovated and expanded the field of practice for legal professionals. Whether in the role of mediator or applying their skills in the practice of law, lawyers are expanding the portfolio of resources in dispute resolution. The ability to mediate and / or assist their clients in self-composing dialogues has generated new possibilities for favorable outcomes, based on a non-adversarial approach. Mediators and lawyers - in a complementary way - have fundamental roles in negotiating an impasse and can assist, in different ways, in the decision making of their clients. 

Master in Conflict Mediation and Facilitation of Dialogues, Tania Almeida suggests to lawyers who wish to benefit from this valuable tool, that they develop a special attribute of Mediation: the inclusive listening filter. It facilitates the perception of impasses, of different interests and their convergences, of intangible values ​​and of objective and subjective guidelines, providing more clarity on how to serve, also, the interests of the other party. 

“Instead of convincing a third decision maker that the client is right, the 'mediator-lawyer' has the role of explaining to the other party and helping them to understand their client's reasons, offering innovative solutions that meet both ”. - Tania Almeida

Lawyer Ricardo Castorri, now also a mediator, had his first experience with Mediation 10 years ago. It wasn't love at first sight, as he tells in the MEDIARE Institute webinar “The Lawyer in Mediation: Advantages, Challenges and Possibilities”. The benefits for its clients and their career, derived from the partnership between the two performances, have been showing themselves over time.

“The work of the lawyer in the litigation scene is quite different. You are almost always reacting to what happened, seeking to hold someone accountable, to blame someone or something for the past. Mediation, on the other hand, is based on law, but looks forward to what can be done now, in the face of what has already happened. Understanding what happened is an important part of the process and will allow the lawyer and the parties to look to the future. Mediation requires open hypotheses from the lawyer, which interact with the history of the people at the table, and active listening, ”said Castorri.

 

 

Mediators and Lawyers on the same side 

During a Mediation session, it is up to the mediator to identify issues, interests and intangible values ​​with the aim of leading the negotiation to try to reach an agreement between the parties involved. At this point, it is worth mentioning that Mediation is a method of conflict resolution based on a scenario of communication and interdependence between the parties. Mediators are concerned with deconstructing the communication deadlocks that hinder the fluidity of the dialogue and design negotiation strategies that favor self-composition. 

Lawyers, on the other hand, can wear two “hats” during the course ofMediation: “the defense of the rights of your client and your legal advisor in the legal issues involved; and support in guiding the client to self-composition - if the client so wishes and both agree that this is the best alternative for the case ”, stressed Tania Almeida in the e-Book "Mediators and Lawyers - Teamwork in conflict resolution"

In private, as they are the trust of their clients in times of disagreement, lawyers can continue the work of mediators. In the litigation process, the lawyer evaluates based on the legislation and the understanding of the courts. In Mediation, the professional is based on the complexity of the conflict and the intention of the parties to resolve the impasse.  

In private, as they are the trust of their clients in times of disagreement, lawyers can continue the work of mediators. In the litigation process, the lawyer evaluates based on the legislation and the understanding of the courts. In Mediation, the professional is based on the complexity of the conflict and the intention of the parties to resolve the impasse.  

The Mediation agreement has a contract value (extrajudicial enforceable title) and may be approved in court. Approval is optional, except in matters relating tou and so require. Confidentiality in Mediation runs through the entire procedure, ensuring privacy.

“Following the implementation of Mediation in our culture, I became convinced that mediators and lawyers should value the fact that, together, they are part of the dispute resolution team of their common clients” - Tania Almeida.

Lawyers trained to practice conflict mediation offer a competitive advantage that is increasingly in demand in the market. In the role of mediator, the lawyer develops the ability to listen and dialogue with the parties, avoiding friction and proposing ways for a viable and satisfactory solution to all the involved. 

Accumulating both qualifications - lawyer and mediator - can provide an important leap for professional growth. In addition to expanding the portfolio of services offered to clients and occupying new spaces in the legal market, the Law professional with this specialization will have the possibility to present a customized treatment to the different types of conflict.

Troubleshoot apThe creation of extrajudicial agreements, without the need to take them to court, is another great advantage that Mediation makes possible within the field of practice of lawyers. Addressing conflicts through self-composition avoids personal and relationship stress, saves time and enables personalized solutions.

To act as a mediator, also within the scope of the judiciary, the ada lawyer needs to have a higher education for at least two years and a training course in Mediation at an accredited school. FIND OUT MORE about training at MEDIARE.

Five years of Law de Mediation

This is a great opportunity to remember - and celebrate - the five years of the Mediation Law (Law No. 13.140), sanctioned on June 26, 2015. The Brazilian legal framework brought legal certainty and was decisive for the consolidation and expansion of the use of this tool in the resolution of conflicts, whether in judicial or extrajudicial litigation processes, either in preventive action. If before the sanction of the law there was doubt about the value of the decisions taken from Mediation, today, there is no more.

The law also defined the presence of lawyers in a Mediation. When the process takes place in court, the parties involved must be accompanied by their lawyers. In a private mediation - extrajudicial - the presence of lawyers will be necessary when demanded by the parties. In both situations, a legal review of the agreement, before signing it, is necessary.

Subsequently, as a consequence of the law, the MEC published Resolution CNE / CES No. 5/2018, which determined the mandatory Mediation discipline in the grid of law courses across the country. These advances strengthen the culture of Mediation in Brazil, in addition to contributing to the training and qualification of new judicial mediators.

Check out here the virtual chat with Tania Almeida and the lawyer Flávio Caetano, who make a retrospective on the process of regulation of Mediation in Brazil, besides highlighting some of its advances and challenges.