Legislation: CPC and Law

For the new Code in article 165 § 3 (BRASIL, 2015, p.74) mediation is the self-compositional process, whose action takes place in cases where the parties have a previous bond, in which the mediator, indirectly, will help them to identify for themselves the consensual solution to their conflict.

Law No. 13.105/15 Code of Civil Procedure

THE PRESIDENT OF THE REPUBLIC

Let me know what the National Congress decrees and I sanction the following Law:

Art. 1 The civil procedure will be ordered, disciplined and interpreted in accordance with the fundamental values ​​and norms established in the Constitution of the Federative Republic of Brazil, observing the provisions of this Code.

Art. 2nd The process begins at the initiative of the party and is developed by official impulse, except for the exceptions provided for by law.

Art. 3 Threats or damages to rights shall not be excluded from jurisdictional assessment.

• 1º Arbitration is permitted, as provided by law.
• 2nd The State shall promote, whenever possible, the consensual resolution of conflicts.
• 3 Conciliation, mediation and other methods of consensual conflict resolution should be encouraged by judges, lawyers, public defenders and members of the Public Prosecutor's Office, including in the course of the judicial process.

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Section V

Of the Conciliators and Judicial Mediators

Art. 165. The courts will create judicial centers for the consensual resolution of disputes, responsible for conducting conciliation and mediation sessions and hearings and for developing programs aimed at helping, guiding and encouraging self-composition.

• 1st The composition and organization of the centers will be defined by the respective court, observing the norms of the National Council of Justice.
• 2nd The conciliator, who will preferentially act in cases where there is no previous bond between the parties, may suggest solutions to the dispute, the use of any type of constraint or intimidation being prohibited for the parties to reconcile.
• 3 The mediator, who will preferably act in cases where there is a previous bond between the parties, will help interested parties to understand the issues and interests in conflict, so that they can, by re-establishing communication, identify, by themselves, consensual solutions that generate mutual benefits.

Art. 166. Conciliation and mediation are informed by the principles of independence, impartiality, autonomy of will, confidentiality, orality, informality and informed decision.

• 1st Confidentiality extends to all information produced in the course of the procedure, the content of which may not be used for a purpose other than that provided for by express resolution of the parties.
• 2 Due to the duty of secrecy, inherent to their functions, the conciliator and the mediator, as well as the members of their teams, may not disclose or testify about facts or elements arising from conciliation or mediation.
• 3º The application of negotiation techniques is allowed, with the objective of providing a favorable environment for self-composition.
• 4th Mediation and conciliation will be governed according to the free autonomy of the interested parties, including with regard to the definition of procedural rules.

Art. 167. Conciliators, mediators and private conciliation and mediation chambers will be registered in a national register and in a register of a court of law or a federal regional court, which will keep a register of qualified professionals, indicating their professional area.

• 1º By fulfilling the minimum qualification requirement, through a course carried out by an accredited entity, according to the curricular parameter defined by the National Council of Justice in conjunction with the Ministry of Justice, the conciliator or the mediator, with the respective certificate, may apply for enrollment in the national register and in the register of the court of justice or federal regional court.
• 2 Once the registration has been completed, which may be preceded by a public tender, the court will send the necessary data to the director of the judicial district court, section or subsection where the conciliator or mediator will act, so that your name will appear on the respective list, to be observed in the alternating and random distribution, respecting the principle of equality within the same area of ​​professional activity.
• 3 The accreditation of the chambers and the register of conciliators and mediators will include all data relevant to their performance, such as the number of proceedings in which they participated, the success or failure of the activity, the matter on which the dispute was dealt, as well as other data that the court deems relevant.
• 4 The data collected pursuant to § 3 shall be systematically classified by the court, which will publish them, at least annually, for the population's knowledge and for statistical purposes and evaluation of conciliation, mediation, private chambers of conciliation and mediation, of conciliators and mediators.
• 5th Judicial conciliators and mediators registered under the caput, if lawyers, will be prevented from practicing law in the courts in which they perform their duties.
• 6 The court may opt for the creation of its own staff of conciliators and mediators, to be filled by public tender of evidence and titles, observing the provisions of this Chapter.

Art. 168. The parties may choose, by common agreement, the conciliator, the mediator or the private conciliation and mediation chamber.

• 1 The conciliator or mediator chosen by the parties may or may not be registered with the court.
• 2nd If there is no agreement regarding the choice of mediator or conciliator, there will be distribution among those registered in the court register, observing the respective formation.
• 3. Whenever recommended, more than one mediator or conciliator will be appointed.

Art. 169. With the exception of the hypothesis of art. 167, § 6, the conciliator and the mediator will receive remuneration for their work provided for in a table established by the court, according to parameters established by the National Council of Justice.

• 1st Mediation and conciliation can be carried out as voluntary work, subject to the relevant legislation and court regulations.
• 2nd The courts will determine the percentage of unpaid hearings that must be supported by the private conciliation and mediation chambers, in order to attend to the processes in which justice is granted free of charge, as a counterpart of their accreditation.

Art. 170. In case of impediment, the conciliator or mediator will notify it immediately, preferably by electronic means, and will return the records to the judge of the case or to the coordinator of the judicial center for conflict resolution, who must carry out a new distribution.

Single paragraph. If the cause of the impediment is determined when the procedure has already started, the activity will be interrupted, minutes being drawn up with a report of the incident and a request for distribution to a new conciliator or mediator.

Art. 171. In the case of temporary impossibility to exercise the function, the conciliator or mediator will inform the center, preferably by electronic means, so that, during the period in which the impossibility lasts, there are no new distributions

Art. 172. The conciliator and the mediator are prevented, for a period of 1 (one) year, counted from the end of the last hearing in which they acted, from advising, representing or sponsoring any of the parties.

Art. 173. The person who:

I – act with intent or negligence in conducting the conciliation or mediation under your responsibility or violate any of the duties arising from art. 166, §§ 1 and 2;

II – act in a mediation or conciliation procedure, despite being impeded or suspected.

• 1 The cases provided for in this article will be investigated in an administrative process.
• 2nd The judge of the process or the coordinating judge of the conciliation and mediation center, if any, verifying inadequate performance of the mediator or conciliator, may remove him from his activities for up to 180 (one hundred and eighty) days, by reasoned decision, informing the fact immediately to the court for the initiation of the respective administrative proceeding.

Art. 174. The Union, the States, the Federal District and the Municipalities will create mediation and conciliation chambers, with attributions related to the consensual resolution of conflicts at the administrative level, such as:

I – settle conflicts involving public administration bodies and entities;

II – assess the admissibility of requests for conflict resolution, through conciliation, within the scope of the public administration;

III – promote, when applicable, the execution of a conduct adjustment term.

Art. 175. The provisions of this Section do not exclude other forms of extrajudicial conciliation and mediation linked to institutional bodies or carried out through independent professionals, which may be regulated by specific law.

Single paragraph. The provisions of this Section apply, where appropriate, to private conciliation and mediation chambers.

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https://conima.org.br/mediacao/codigo-de-processo-civil/