Mandatory Conciliation / Mediation Conference Under The New Code Of Civil Procedure

The new Code of Civil Procedure ('New CPC') introduced some innovations to Brazil's procedural system. One of them is the mandatory conciliation or mediation conference set out in article 334 of the New CPC.

Conciliation is a form of dispute resolution conducted by a conciliator, who is an impartial third party. The role of the conciliator is to end the dispute through an agreement. He plays an active role in the resolution of the dispute because he suggests and proposes solutions and also participates in the discussions and in establishing the bases for a settlement with the parties. Therefore, the role of the conciliator is to get the parties to settle the dispute through conciliation.

Mediation is somewhat different, because even though the mediator also is an impartial third party, he seeks to bring the parties closer to each other, encouraging them to come up together with a solution to the dispute. The mediator, therefore, is a neutral person who must allow the parties to reach a solution to end the dispute by themselves. His role is only to listen to them, without intervening directly. The mediator acts as a type of moderator and merely ensures the means for the parties to enter into a dialogue. Usually, the subjects addressed by mediators are more sensitive, such as child support, divorce, etc.

The Mandatory Conciliation or Mediation Conference under the New CPC

The New CPC innovated judicial procedure by introducing the mandatory pretrial conciliation/mediation conference. Before the procedure unfolds, the parties are required to submit themselves to conciliation/mediation. It is an innovation that seeks the resolution of the dispute at the outset of the procedure. It is like an "opportunity given by the legislator" for the parties to settle before the judicial procedure begins.

In ordinary common proceedings, the defendant is no longer notified to answer, but instead to attend a judicial conciliation/mediation conference, which is now mandatory in every lawsuit.

The head provision and paragraphs 1, 2 and 3 of article 334 of the New CPC are worded as follows:

"If the complaint fulfills the essential requirements and it is not a case for denial of the claim in limine, the judge shall schedule a conciliation or mediation conference at least thirty (30) days in advance. The defendant shall be served with notice at least twenty (20) days before the date of the conference."

Paragraph 1. The conciliator or mediator shall always...