Regulamento de Mediação - válido a partir de 01/07/2013 (em inglês)

CBMA – The Mediation Rules

 

PREAMBLE

 

The Centro Brasileiro de Mediação e Arbitragem (the “CBMA”)- Brazilian Center for Meditation and Arbitration -, a nonprofit entity, linked to Associação Comercial do Rio de Janeiro (the “ACRJ”) - Trade Board of Rio de Janeiro - and to Federação Nacional das Empresas de Seguros Privados e de Capitalização (the “FENASEG”)- the National Federation of Private Insurance and Capitalization Companies – established in order to promote alternative ways to settle disputes and, specially, mediation and arbitration, follows these Mediation Rules (the “Rules”).

 

1. Mediation

 

1.1 Mediation is a decision-making process assisted by a neutral and impartial third party (the “Mediator”) who, with appropriate capability, supports the parties, facilitating communication and negotiation, in a consensual resolution of controversy.

 

1.2 All civil or commercial, national or international conflicts may be submitted to mediation, be it before, during or after judicial or arbitral proceedings.

 

1.3 The process of mediation is based on informality, freedom of choice and good faith of all members. Information exchanged and proposals put forward during the process of mediation are private and confidential, and parties and Mediator are prevented from disclosing them later, including under future arbitral  or judicial proceeding. Unlike judicial proceedings and arbitration, parties in Mediation, retain the power to decide what solutions may be taken; nevertheless Mediator has monopoly of decision on how to conduct the mediation process.

 

2. Introductory Provisions

 

2.1 Applicable Rules, Fees and Costs of Mediation will be the ones in force at the time of the request for commencement of mediation, except as otherwise agreed by the parties in writing and approved by CBMA.

 

2.2 CBMA’s services aim at assuring compliance with the Rules, whereby mediator is responsible for the mediation process per se. 

 

2.2.1 In no event shall mediator, CBMA or their employees be liable to any person, for acts or omissions related to the decision-making process, but all of them are bound by confidentiality obligations.

 

2.2.1.1 The confidentiality agreement is fully subject to the limits of the country’s legislation.

 

2.3 Any legal entity or capable natural person may apply to CBMA for commencement of mediation, whenever the case involves civil, family or commercial subjects.

 

2.4 Communication issued by Mediator and CBMA Secretariat to the parties will be forwarded, acknowledged receipt required (“AR”), to the address that was given by the interested parties, but may also be given by any other way that proves its dispatch, such as email, fax or telegram.

 

2.5 Deadlines given under the Rules will start to run on the first business day after notification with its attachments, if any, and will include the relevant maturity date.

 

2.6 Whenever a Deadline falls on a national or local holiday at the mediator’s or either party’s place of establishment or on a date in which the Center is not open for business, such Deadline will be extended to the next business day.

 

2.7 The parties may agree to modify the terms, rather than using the ones established under these Rules.

 

3- Mediation start-up

 

3.1 The party or parties interested in starting mediation pursuant to the Rules hereunder shall file a written Request to CBMA, which must be accompanied by proof of payment of filing fees, according to the current schedule of costs, as well as: 

a) Name and personal data of the parties;

b) A brief report about the controversial issue, which may be jointly prepared by the parties in case all interested parties have agreed to resort to mediation; 

c) If possible, an estimate of amounts involved;

d) Optionally, copies of organizational documents and other documents underlying the dispute;

e) Any agreement as to language and the chosen place for mediation.

 

3.2. Request may also contain:

 

a) Indication of one to three names to act as Mediator(s) of the conflict; or

 

b) The attributes that the party wishes to find in a Mediator who will conduct the Proceeding.

 

3.3. The applicant may request that the other parties have access to documents and written communications. In this case, the applicant shall submit to Mediator such documents in copies corresponding to the number of parties, and another copy that should be filed with the CBMA’s Secretariat.

 

3.4. CBMA will send the Request to the others parties, which must express within 10 days their willingness to schedule a pre-mediation meeting, in which methodology, responsibility of both parties and that of mediator’s will be disclosed.

 

3.5. If pre-mediation is accepted, then CBMA will determine the date and time in which such meeting will will take place and appoint a Mediator, and if necessary a co-mediator, who will conduct the Proceeding.

 

3.6. If the respondent does not agree to a pre-mediation meeting, then the applicant will be immediately informed by CBMA.

 

3.7. If mediation’s option is contractually foreseen or if requested jointly by all the parties involved, then CBMA shall, having received the Request set forth on item 3.1, immediately schedule a pre-mediation meeting to take place within 15 (fifteen) days, counting from dispatch of the Request to the other parties.

 

3.8 Pre-mediation meeting will be conducted by the mediation’s President or Vice-President or by one of the CBMA's mediation director.

 

4. Selection of Mediator

 

4.1. If both parties agree on starting mediation, CBMA shall ask for appointment of a Mediator by mutual agreement among those on CBMA´s list or another Mediator chosen by the parties, provided he or she is of highly reputed experienced and capable.

 

4.1.1. In case the parties appoint an external mediator, out of CBMA´s list, his or her curriculum and contacts shall be submitted to CBMA which, within five (5) business days, shall act on its acceptance or refusal to managing mediation conducted by Mediator chosen by the parties.   

 

4.2. In the absence of the joint appointment of a Mediator by the parties, CBMA´s President or Vice-President shall appoint a professional among those on CBMA’s list of mediators.

 

4.3. Mediator chosen by the parties or appointed by CBMA shall, within 3 (three) days after the notice of his appointment, disclose any fact or circumstance that might be a cause for question of Mediator’s impartiality, independency and availability, and shall execute the Independency and Impartiality Term.

      

4.4. The aforesaid document shall be distributed to the parties and to CBMA, in order to make them aware of Mediator’s representations and statements.

 

4.4.1. Within 10 days following receipt of the Term of Independency and Impartiality, the parties, based on sound arguments, may refuse the  Mediator appointed by CBMA.

 

4.5. In case of an impediment or impossibility of Mediator´s participation, including during the course of Proceedings, it will be up to the CBMA's Mediation President or to the Vice-President and absent an agreement between the parties, to appoint a new mediator.

 

4.6. Upon Mediator's recommendation, the parties shall appoint more than one Mediator or request to CBMA to appoint more than one Mediator to act in co-mediation to resolve the conflict.

 

5. Terms of Reference

 

5.1. Once Mediator has been selected,  CBMA shall make sure that the Terms of Reference will be signed by the parties, optionally by their attorneys, and by Mediator.

 

5.2. Terms of Reference shall include:

a) Name and personal data of the parties and, in case of legal entities, their legal representatives and confirmation of their authority to bind such entities;

b) Address, telephone number and email address of the parties in order to allow exchange of communications receipt;

c) Name, qualification, address, telephone and email address of Mediator(s);

d) Estimated timeline schedule;

e) Mediator’s fees;

f) Apportioning of expense;

g) Determination of place and language of mediation;

h) Other relevant remarks;

 

5.3. Once Terms of Reference has been signed, fees shall be deposited by the parties, before the mediation process begins.

 

6. Mediation Proceedings

 

6.1. Mediator shall conduct mediation in the manner he or she sees fit, with due regard to the principles of neutrality, on the parties’ autonomy and on the pertinent CONIMA Code of Ethics , unless the parties have otherwise agree.

 

6.2. Mediator, the parties and CBMA's Secretariat have the duty to maintain professional confidentiality, even after completion of mediation proceedings, and the parties are not allowed to disclose information entrusted to them in the course of mediation, unless the parties otherwise agree.

 

6.3. In the course of Proceedings, Mediator may hold joint meetings with attendance of both parties, and individual meetings, with just one of the parties involved.

 

6.4. Mediator shall maintain confidentiality of all information obtained by virtue of his or her duties as Mediator, even after completion of the mediation process. Mediator may disclose to the other party(ies) information that has been disclosed to him or her at an individual meeting, only if the party from which he or she obtained such information did not classify it as confidential.

 

6.4.1. If Mediator has doubts as to whether a specific piece of information, which had been disclosed to him or her at an individual meeting, is confidential or not, it is his or her duty to elucidate classification thereof with the person who has disclosed it.

 

7. Term of Settlement

 

7.1. Once the parties settle, in full or in part, through an amicable compromise, Mediator may assist them to draft the terms of such settlement upon request. 

7.2. Settlement terms shall be signed by all parties, with number of copies corresponding to the number of parties, and another copy that should be filed with CBMA’s Secretariat.

7.2.1. Settlement terms may, at the parties’ discretion, be signed by two witnesses, in order to be turned into a legal enforceable title, in  compliance with article 585 of the Civil Procedure Code.

 

8. Ending Proceedings

 

8.1. Mediation proceedings come to an end:

a) Upon the parties’ execution of the Terms of Reference.

 

b) Upon Mediator’s written statement to the effect that he or she does not see any other way to pursue mediation. 

 

b.1) In such event, the parties may select a new Mediator or request CBMA to appoint a new Mediator to pursue Proceedings.

 

b.2) CBMA may but need not agree with further processing of the case in such events.

 

c) Upon a written statement by the parties, directed to Mediator and commanding him or her to end mediation; or

 

d) Upon a written statement by either party to the other and to Mediator, requesting the end of mediation.

 

8.2. Once Mediator realizes that there is no more room for negotiation between the parties and/or their legal representatives who are attending the proceedings, Mediator may, if he or she deems appropriate,  at individual meetings, volunteer proposals for solution, expressing his or her opinion on how the dispute could be settled in a reasonable manner to all parties.

 

8.2.1. If both parties agree, then mediator´s proposal will be offered at individual meetings, followed by a deadline for each party to express its acceptance or refusal thereof. If both parties accept mediator’s proposal, then Mediator shall announce to them that settlement has been reached. If one or both parties refuse Mediator’s proposal, then Mediator shall only inform that settlement was not reached, without disclosing the other party's answer.

 

8.2.1.1. In any of these events,  mediator shall not continue as mediator of the case, after having disclosed his or her proposal.

 

 

9. Final Provisions

 

9.1. Whenever Mediator determines that conditions to reach settlement are absent, he or she may advise the parties to solve the issue by means of arbitration.

 

9.2. Unless the parties otherwise agree in writing, at the time mediation comes to an end, Mediator will be prevented from acting as  arbitrator or lawyer at any future arbitral or judicial proceeding which involves one of the parties, in case the conflict comes to be subject to arbitration or goes to the Judiciary.

 

9.3. Mediation proceedings are fully independent and not in prejudice to the rights of any of the parties, should the conflict be submitted to arbitration or to the Judiciary.

 

9.4. The Mediators List provided by CBMA will be composed of professionals of unblemished reputation and recognized experience, capacity and technical aptitude, who shall remain independent and impartial throughout completion of the case.

 

9.5. These Rules shall become effective as of September 1st, 2013.

 

FUNDADORES
Rua Candelária, nº 9, Gr. 803 — Centro, Rio de Janeiro, RJ, 20091-904
Tel.: +55(21) 2233-9974 / +55(21)2223-0194 / +55(21) 2514-1209 / +55(21) 2514-1214. Fax: +55(21) 2514-1209
E-mail: cbma@cbma.com.br
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