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Conciliation and Mediation in Brazil and Latin America

By Octávio Aronis, Attorney
August 14, 2018

As you know, trade wars and tariff negotiations are presently consuming the international business community. For good or bad reasons, the United States has caused countries, including Brazil, to levy and retaliate against its new imposition of tariffs on a variety of goods and materials.

This new situation, which is in addition to already existing poor economic conditions and political instability, will most likely have a significant impact on economies and businesses throughout Brazil and Latin America, resulting in an increase in collection claims. In this difficult economic environment, making use of the best dispute resolution strategies is absolutely imperative.

When attempting to resolve claims in Brazil and throughout Latin America, having a partner that utilizes the best methods of dispute resolution, rather than going to court as the first step, is essential for successful recovery. The dispute resolution strategies that our firm finds to be the most time and cost-effective are those of of conciliation and mediation, which take place outside of the court system. Let me take a moment to explain the differences between these two dispute resolution institutes.  

Conciliation is a process focused on maintaining or rebuilding a positive relationship between the disputing parties which:

  • Is non-adversarial, using a specialized, local professional to facilitate negotiations between the two parties.  
  • Typically is utilized to resolve a difference in positions, not underlying interests.
  • Allows the conciliator to offer settlement proposals directly in an effort to end the conflict.
  • Emphasizes reaching objective goals.
  • Can be applied to transitory relationships.

In this role it’s essential that the facilitator have sufficient expertise in the field that relates to the dispute at hand.

Like conciliation, mediation is also where an impartial third party facilitates a conversational process between the disputing parties to come to a satisfactory resolution by: 

  • Allowing the third party to help disputing parties understand the conflict better by uncovering the underlying interests and needs making up their different positions.
  • Fostering productive communication and encouraging cooperation to help the parties find original ways to resolve the issue outside of litigation.
  • Assisting the parties to come up with their own solutions to the conflict, but the mediator does not offer proposals like in conciliation.
  • Emphasizing the resolution of subjective issues.
  • Applying to relationships that are past, current and/or future long-term.

At the end of the day, under mediation, both parties hope to walk away with something in their pockets.

Conciliation and mediation involve having superior communication and human relation skills that from the start convey to both parties a feeling of trust that the facilitator will do everything possible to handle the dispute equitably.

Conciliation and mediation have seen significant growth in Brazil and Latin America in recent years and are the preferred alternative to litigation, which can take years to process even in the simplest of cases due to the horribly backlogged courts.

In view of a complicated and overburdened court system, throughout the years our firm has developed an expertise and become well known for using conciliation and mediation in Brazil and Latin America. We find that utilizing these two dispute resolution strategies results in the most time and cost-effective resolution to our clients throughout the world.

Please contact Octávio Aronis at octavio@aronisadvogados.com.br.

This article has been edited by Ed Bessenbacher of Stellar Risk Management Services, Inc.

 

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