CONIMA MODEL REGULATION
(latest version in final revision process)
Consensus decisions obtained through composition are increasingly effective in resolving disputes. For such a result, it is possible to use Mediation.
Mediation is a non-adversarial and voluntary process of dispute resolution through which two or more persons, natural or legal, seek to obtain a consensual solution that makes it possible to preserve the relationship between them. For this, they resort to a mediator, a third impartial facilitator, competent, diligent, credible and committed to secrecy; that encourages and facilitates communication, as well as assists in seeking to identify the real interests involved.
The mediator, through a series of procedures and appropriate techniques, identifies the interests of the parties and helps them to build solution options, without binding character, aiming at consensus and/or the realization of the agreement.
Mediation involves emotional, relational, business, legal, sociological aspects, among others. Thus, when necessary, to meet the peculiarities of each case, the parties may use professionals specialized in aspects of the controversy, aiming at an informed decision and allowing for an interdisciplinary solution through the complementarity of knowledge.
Comediation is the process carried out by two (or more) mediators that allows a broader view and reflection of the controversy, providing a more comprehensive and efficient approach.
The option for Mediation gives prestige to the dispositive power of the parties, makes it possible to speed up the resolution of controversies and reduces time, emotional and financial costs. The procedure is confidential, with the mediator responsible for its administration and the parties responsible for the decisions. Mediation has its own characteristics that differentiate it from other forms of dispute resolution, making it possible to even establish the future adoption of other methods.
The commitment to the people involved in the controversy, the importance of the institute for society and the essential seriousness of its exercise require adequate and careful training from the mediator to enable him to conduct this type of dialogue.
Mediation is an agreement of wills, the establishment of which must be the object of a contract based on general principles and rules, having as characteristics flexibility, clarity, conciseness and simplicity, both in language and in procedures, so that they meet the understanding and to the needs of the target market.
These are BASIC PRINCIPLES to be respected in the Mediation Process:
- the autonomy of the will,
- the confidentiality,
- the orality,
- the informality,
- the good faith,
- informed decision,
- equality between the parties and
- the search for consensus.
The mediator must respect, in his performance, the principles of impartiality, independence, competence, diligence and confidentiality.
This Regulation, together with the Code of Ethics for Mediators, applies to Mediations organized by institutions or specialized entities, as well as to Mediations “and following the best practices”, carried out by a professional chosen by the parties, disconnected from any institution or entity, in everything that is compatible.
It is recommended to all institutions and entities, governmental and private, organized for the service of Mediation, as well as to all mediators "and following the best practices”, which are based on the Model Mediation Regulations and the CONIMA Code of Ethics for Mediators.
Art. 1º – Any capable legal or natural person may request Mediation for the solution of a dispute to specialized institutions or entities, or to “ad hoc” mediators.
Art. 2º – The request for Mediation, as well as the invitation to the other party to participate in it, should preferably be made in writing.
Art. 3º – When the other party does not agree to participate in the Mediation, the first will be immediately notified in writing.
I. It is recommended that the period between the initial request and the Pre-Mediation interview (Article 5) does not exceed 30 (thirty) days.
4nd Art - The parties must participate in the process in person. or by a representative with a power of attorney that grants decision-making powers.
The parties may be accompanied by lawyers, other technical advisors and persons of their choice, provided that these presences are agreed between the parties and considered by the mediator to be useful and relevant to the necessary balance of the process.
Art. 5º – The Process will start with the Pre-Mediation meeting, individual or joint, for the following purposes:
I. the parties must describe the dispute and state their expectations;
II. the parties will be informed about the Mediation process, its procedures and techniques;
III. the parties will decide whether or not to adopt Mediation as a method of resolving their dispute;
IV. the parties will choose the mediator, under the terms of Chapter IV, who may or may not be the one coordinating the works of the Pre-Mediation meeting. If deemed appropriate, the parties may indicate more than one mediator, who will act in co-Mediation.
It is recommended that the period between the Pre-Mediation meeting and the one that will facilitate the negotiation of procedures and the signing of the Mediation Term not exceed 15 (fifteen) days.
Art. 6º – Gathered after choosing the mediator, and with his participation, the parties must sign the contract (Term of Mediation) where the following are established:
I. the work schedule;
II. the objectives of the proposed Mediation;
III. the rules and procedures, even if subject to redefinition negotiated at any time during the process, namely:
– extension of secrecy with regard to the institution, the mediator, the parties and other persons who may participate in the process;
– estimate of their duration, as well as meetings and their frequency;
– rules on private and joint meetings;
– procedures relating to the documents provided to the Mediation and the notes produced by the mediators;
IV. the persons who will represent the parties, by means of a power of attorney with express decision-making powers, or who will accompany them, as the case may be;
V. the place and language of the Mediation, or, if they so wish, leave it to the discretion of the institution or entity organizing the service;
SAW. the costs and method of payment for the Mediation, subject to the provisions of articles 16 and 17;
VII. the name of the mediator and, if applicable, the sponsoring institution.
Art 7º – The parties will choose a mediator either from the list offered by the institution or entity organizing the service, or another professional of free choice. The parties may also request the organizing entity to indicate a mediator to be ratified by them.
I. The mediator chosen by the parties will be subject to the approval of the organizing entity, if he/she is not part of the institution's panel of mediators.
II. the mediator elected by the parties will express his acceptance and commit to impartiality, disclosing a fact or circumstance that compromises his independence.
If, during the Mediation, there is any impediment or impossibility for the mediator to participate, a new professional will be chosen according to the criteria chosen by the parties.
Art. 8º – If the parties have chosen a single mediator, he may recommend co-mediation, if he considers it beneficial to the purpose of the procedure.
Art 9º – Mediation meetings may be joint or private.
Single paragraph: In the event of a private meeting, the mediator will meet separately with each of the parties, respecting the provisions of the Code of Ethics for Mediators regarding equal opportunities and the confidentiality of this circumstance.
Art. 10º – The mediator will conduct the proceedings in the way he deems appropriate, taking into account the circumstances, what was established in the negotiation with the parties and the speed of the process.
Art. 11º – The mediator will ensure that there is a balance of participation, information and decision-making power between the parties.
Art. 12º – Unless otherwise provided by the parties, or otherwise prevented by law, the mediator may:
I. negotiate with the parties the increase or decrease of deadlines established or previously agreed with them;
II. elucidate what you understand to be necessary for the proper development of the process;
III. ask the parties to provide documents that he or the expert deems relevant for analysis in the procedure;
IV. ask the parties to seek all technical and legal information necessary for making qualified decisions.
Art. 13º – The mediator is prevented from acting as an arbitrator in a subsequent Mediation procedure pertaining to the same conflict, as well as from providing services related to his/her original profession to any of the parties for a period of (01) one year, counted from the last Mediation meeting.
Art. 14º – Mediation information is confidential. The mediator, any of the parties, or other person acting in the Mediation, may not disclose to third parties or be called or compelled, including in subsequent Arbitration or Judicial Proceedings, to disclose facts, proposals and any other information obtained during the Mediation.
Art. 15º – The documents presented during the Mediation must be returned to the parties, after analysis. The others must be destroyed or archived as agreed.
Art. 16º – The costs, including administrative expenses and mediator fees, will be apportioned between the parties, unless otherwise provided. In the case of Mediation carried out by an institution or specialized entity, these costs must follow the respective tables.
Art. 17º – The mediator's fees must be agreed in advance and may be established by hour worked or other criteria defined with the parties. When Mediation is carried out through a specialized institution or entity, the respective tables will be adopted.
Art. 18º – The mediator cannot be held responsible for any action or omission related to the Mediation conducted in accordance with the ethical norms and rules established with the parties.
Art. 19º – The agreements formed in Mediation may be total or partial.
If the parties have not reached an agreement on some items of the Mediation agenda, the mediator may act in the negotiation aimed at helping the parties to choose other extrajudicial or judicial means for their resolution.
Art. 20º – The agreements obtained in Mediation may be informal or constitute extrajudicial enforceable titles, provided that the legal requirements are met, namely: by means of a public deed signed by the parties; or by private document signed by the parties and two witnesses; or by instrument of transaction countersigned by the Public Prosecutor's Office, the Public Defender's Office, the Public Advocacy, the parties' lawyers or a conciliator or mediator accredited by the Court. In the event of an “ad hoc” mediator, when not accredited by the Court, he must sign together with the parties' lawyers.
If the parties so wish or the matter so requires, the agreements will be taken to judicial approval by lawyers or defenders. In these cases, mediators must remain available to help preserve the original content.
Art. 21º – The Mediation Process ends:
I. with the signing of the term of agreement by the parties;
II. by a written statement from the mediator, in the sense that it is not justified to apply more efforts to seek composition;
III. by a joint declaration of the parties, addressed to the mediator with the effect of terminating the Mediation;
IV. by a written statement from one party to the other, and to the mediator, with the effect of terminating the Mediation.
Art. 22º – It is recommended that the parties insert a Mediation Clause in the contracts, which must meet the legal requirements regarding the minimum and maximum period for holding the first meeting, place of the first meeting, criteria for choosing the mediator and penalty in case of non-attendance of the party invited to the first Mediation meeting. The parties may also elect the regulation of the institution of Mediation that includes the aforementioned items.
Art. 23º – It will be up to the parties to decide on gaps in these Regulations, and may delegate this task to the institution or specialized entity to which the Mediation is linked, if they so wish.
Source: CONIMAhttps://conima.org.br/mediacao/regulamento-modelo-mediacao/>