Mediation has innovated and expanded the field of action of legal professionals. Whether in the role of a mediator or applying their skills to the practice of law, lawyers are expanding their portfolio of dispute resolution resources. The ability to mediate and/or assist their clients in self-compositional 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 help, in different ways, in the decision-making process of their clients. 

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

“Instead of convincing a third party decision-maker that the client is right, the 'mediator-lawyer' has the role of explaining to the other party and helping him to understand his client's reasons, offering innovative solutions that cater to 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 its career, resulting from the partnership between the two activities, have been presented over time.

blank“The lawyer's job in the litigation scenario is quite different. He is almost always reacting to what has happened, seeking to hold someone accountable, to assign blame or obligation to someone, for something in the past. Mediation, on the other hand, is based on Law, but looks forward to what can be done now, given what has already happened. Understanding what happened is an important part of the process and will allow the attorney and the parties to look to the future. Mediation requires from the lawyer open hypotheses, which interact with the history of the people at the table, and an active listening”, pointed out 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 ​​in order to lead 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 on the interdependence between the parties. Mediators are busy deconstructing communication impasses that hinder the fluidity of dialogue and designing negotiation strategies that favor self-composition. 

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

Privately, 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 parties' intention to resolve the impasse.  

The agreement in Mediation has contract value (extrajudicial executive title) and may be approved in court. Approval is optional, except in matters qthat so require. Confidentiality in Mediation permeates 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 integrate the dispute resolution team of their common clients” – Tania Almeida.

The lawyers trained to exercise Conflict Mediation offer a competitive advantage that is increasingly required in the market. In the role of mediator, the lawyer develops the ability to listen and dialogue with the parties, avoiding friction and proposing paths to a viable and satisfactory solution to the all the involved. 

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

solve ap casesThe use of extrajudicial agreements, without the need to take them to the courts, is another great advantage that Mediation makes possible within the field of lawyers' work. Addressing conflicts through self-composition avoids personal wear and tear in relationships, saves time and enables personalized solutions.

To act as a mediator, also within the scope of the judiciary, the adVogado must have a higher education degree for at least two years and a training course in Mediation at an accredited school. Learn more about training at MEDIARE.

Five years of the Lawe Mediation

This is a great opportunity to remember – and celebrate – the five years of the Mediation Law (Law No. 13.140), enacted 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 conflict resolution, whether in judicial or extrajudicial litigation processes, or in preventive action. If, before the enactment of the law, there was doubt about the value of decisions taken through Mediation, today, there is no longer any doubt.

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 – extrajudicial – mediation, the presence of lawyers will be necessary when requested by the parties. In both situations, the 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 discipline of Mediation in the curriculum of law courses across the country. These advances strengthen the culture of Mediation in Brazil, in addition to contributing to the training and training of new judicial mediators.

blankCheck 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, in addition to pointing out some of its advances and challenges.