ADR has been gaining momentum in Brazil for many years, sparked in part by a rise in foreign investment, the export of capital abroad, and distinct public policy shifts. The Brazilian Supreme Court affirmed the constitutionality of the Arbitration Act in 2001, and the country adopted the New York Convention in 2002. There have been several advances since, including the recognition and enforcement of foreign arbitration awards, the creation of court centers devoted to administering and incentivizing ADR, and the development of ADR programs in law schools.
Arbitration in particular is increasingly used as a substitute for Brazil’s historically slow and somewhat disjointed legal process. Mediation so far is primarily employed in small claims areas, such as family and criminal cases, and has not yet gained momentum in commercial cases. This is because federal law on mediation is still in development. However, there has been progress. The new Brazilian Civil Code of Procedure, likely to take effect in 2014, mandates that parties first try mediation in an attempt to resolve disputes. The Brazilian Senate has also appointed a commission to prepare a mediation bill for the country’s Congress, which will be another crucial step in moving mediation forward.
From what we can see, arbitration is relatively well established in Brazil. However, the development of new laws on mediation, likely followed by slow implementation means that mediation may not be widely accepted there for several years. The developments for ADR in Brazil are very positive — and as ADR gains acceptance, and Brazil sees the impact on the judicial efficiency as well as the economy, its use is likely to spread even more.
By Chris Poole
Chris Poole and Judge Weinstein meet with three members of the 2013 Weinstein JAMS Fellows class.
Although many countries have not developed formal ADR processes as part of their legal systems, dispute resolution practices have been in place practically since the beginning of time. These practices have taken on many forms in different societies and they continue to evolve and mature. While many of us think of ADR only in a legal and commercial context, some of the most effective systems in the world exist in some of the least developed economies. Systems like conciliation, negotiation and adjudication are already built into many community structures.
In more developed nations there has been a lot of progress over the past several years aimed at increasing the use of mediation and arbitration in legal disputes. This is often driven by inefficient court systems or perhaps just to reduce the cost of disputes. In some countries the time it takes to get to court and achieve a litigated resolution can stretch over many years and when settlements are reached outside of court, the courts are not always willing or able to enforce them. Consumers in many countries don’t have access to alternatives to long and sometimes expensive legal proceedings.
While governmental bodies in the European Union, India, Singapore and elsewhere continue to use their influence to make ADR more accessible and attractive in settling disputes, the JAMS Foundation has taken a more creative approach. Through its Weinstein JAMS International Fellowship program, the foundation has brought more than 50 individuals from 44 countries to the U.S. since 2009 to learn more about the best practices in the American ADR system so that they can return to their home countries to “spread the word.” Judge Weinstein conceived of and funded the Fellowship Program to provide opportunities for ADR professionals from throughout the world to learn more about dispute resolution in the United States. Now in its fifth year, the current class of 2013 includes 11 Fellows from various countries including Egypt, Mexico, Iran, Israel, Afghanistan and Turkey.
These individuals come from all walks of life. Some are judges, many are lawyers and others just want to pursue a life of dispute resolution. Their goals may be to improve the efficiency in their home court system, set up a commercial ADR business or – in the case of one former Fellow from Bhutan, to “educate communities of the existence of our traditional dispute resolution system known as Nangkha Nangdrik.” Each of these individuals function as a sort of “Johnny Appleseed” to spread the word of conflict resolution and to promote more effective practices in their home countries.
Recently, Judge Weinstein and the Foundation partnered together to continue administering the Fellowship program. The funding provided by Judge Weinstein and the JAMS Foundation will provide a minimum of $6 million over the next 20 years. By that time, hundreds of Fellows from scores of countries will potentially have done more to promote ADR around the world than any regulation or law. It is a refreshing and inspiring approach.
Italy boasts some of the finest wine, clothes, art, food and cars in the world. It is an amazing country with attributes that have made it a top-notch tourist destination.
But recent events have made the mediation scene more of a mixed bag. There was great potential around the Italian law that required mediation in most civil lawsuits, naturally great disappointment when the nation’s courts held the law exceeded the legislature’s authority. The state of Italian ADR is in a bit of flux.
Interestingly enough, the New York Times and the Wall Street Journal both ran headlines calling the new Italian Prime Minister, Enrico Letta, a “Man of Mediation.” The WSJ noted that “Mr. Letta’s reputation as someone who can reconcile left and right helped the 46-year-old get the president’s nod to try to form a government in the wake of February’s inconclusive general election.” A high ranking minister (who wished to keep his name out of the story) described Letta as “a man of mediation. He touches on all the problems, but rarely takes a position on them….Given all of Italy’s challenges, a broker may be more successful than a hard nosed politician.”
We hope that Mr. Letta’s skills prove to be up to whatever challenges lay in his path. Perhaps once he’s settled in, he’ll get Italy’s mediation law back on track and we’ll be able to rank Italian ADR in the same echelon as that of their gelato and pasta!