The search for alternatives to state jurisdiction has always been part of the history of conflict resolution. Even before the existence of the state as we know it today, primitive societies resorted to arbitration and self-composition to resolve disputes, often through respected figures in the community. 

In Brazil, these methods gained normative relevance starting in the 1990s, with the strengthening of the culture of peacemaking. In this sense, mediation and arbitration were incorporated in a more structured way into the Brazilian legal system with the Arbitration Law (Law No. 9.307/1996), CNJ Resolution No. 125/2010, and the Mediation Law (Law No. 13.140/2015). 

These rules ushered in a new phase in Brazilian civil procedure, marked by the emphasis on consensual dispute resolution and the encouragement of choosing the most appropriate method for each specific case.

Constitutional and legal provision

The 1988 Federal Constitution, in article 5, item XXXV, ensures that "the law shall not exclude from the consideration of the Judiciary any injury or threat to a right." However, this guarantee does not prevent citizens from opting for consensual or private means of conflict resolution, such as mediation and arbitration, whenever applicable.

The 2015 Code of Civil Procedure reinforced this trend. Right in its article 3, §3, the legislator determined that "conciliation, mediation and other methods of consensual conflict resolution should be encouraged by judges, lawyers, public defenders and members of the Public Prosecutor's Office, including during the course of judicial proceedings".

Furthermore, the Mediation Law (Law No. 13.140/2015) and the Arbitration Law (Law No. 9.307/1996) autonomously regulate these forms of dispute resolution, establishing their own principles, requirements, and legal effects. Resolution CNJ No. 125/2010 instituted the National Judicial Policy for the appropriate treatment of conflicts, encouraging the creation of mediation and conciliation centers in all courts.

Key differences between mediation and arbitration.

Although both institutions relate to resolving conflicts outside of traditional litigation, there are essential differences between mediation and arbitration. Mediation is a consensual method , based on self-composition. In it, an impartial third party—the mediator—facilitates dialogue between the parties so that they reach an agreement themselves. The mediator does not impose decisions, but only guides the communication process.

Arbitration, on the other hand , is a heterocompositive method in which the parties transfer the power to decide the dispute to an arbitrator—or an arbitral tribunal. The arbitral decision has the force of a court judgment and is, as a rule, not subject to appeal. Therefore, arbitration is often adopted in complex disputes, especially in the business and contractual context.

Furthermore, while mediation seeks to preserve relationships and find consensual solutions, arbitration is closer to the judicial process, aimed at the definitive resolution of the dispute through a technical and impartial decision.

Procedural rules according to the CPC 

The 2015 Code of Civil Procedure (CPC/2015) innovated by including a specific chapter dedicated to mediation and conciliation, from articles 165 to 175 , regulating procedural and organizational aspects. Of particular note is the mandatory requirement for courts to maintain judicial centers for the consensual resolution of conflicts (art. 165), and the provision that mediators and conciliators be duly registered and trained.

Article 166 enshrines the principles of mediation and conciliation: independence, impartiality, autonomy of will, confidentiality, orality, informality, and informed decision-making . These principles ensure that the procedures are conducted ethically and safely, encouraging the participation of the parties.

The mediation or conciliation hearing has also been formally incorporated into the initial phase of the common procedure. According to article 334 of the CPC (Code of Civil Procedure), after receiving the initial petition, the judge will, as a rule, schedule a hearing aimed at reaching an agreement. Attendance is mandatory, and unjustified absence may result in a fine.

In family law cases , mediation plays an even more important role. Articles 693 to 699-A of the Brazilian Code of Civil Procedure emphasize that all efforts should be directed towards a consensual solution. The judge may even suspend the proceedings so that the parties can attempt extrajudicial mediation or participate in multidisciplinary counseling.

CNJ Resolution No. 125/2010

Resolution No. 125/2010 of the National Council of Justice (CNJ) establishes the National Judicial Policy for the appropriate treatment of conflicts of interest within the Judiciary. Its objective is to promote a culture of social pacification through the use of consensual methods, such as mediation and conciliation.

One of the main instruments of this policy is the creation of Judicial Centers for Conflict Resolution and Citizenship (CEJUSCs) , responsible for conducting conciliation and mediation sessions, both pre-trial and trial, with the assistance of conciliators and mediators trained and registered by the courts.

Practical examples and hypotheses for the suitability of mediation and arbitration.

Mediation is especially effective in situations involving ongoing relationships or when there is an interest in preserving existing bonds, such as :

• Family conflicts: Divorces, child custody, and division of assets are cases where maintaining a cordial relationship is beneficial for all parties involved.
  
• Business disputes: Disagreements between partners or contractual issues that impact long-term business partnerships.
  
• Community conflicts: Disagreements between neighbors or members of a community, where future coexistence is inevitable.

A arbitration, In turn, it is recommended for litigation involving technical or specialized issues, such as:

• Complex commercial contracts: Disputes that require specific technical knowledge, such as in engineering or technology sectors.
  
• International relations: Disputes between companies from different countries, where arbitration offers neutrality and speed.
  
• Real estate sector: Controversies related to large-scale projects or incorporations, where confidentiality and specialization are valued.

The importance of choosing the appropriate method for the specific case.

Choosing the most appropriate method for conflict resolution is a fundamental step in the process of properly handling disputes. Correctly distinguishing between mediation and arbitration directly impacts efficiency, procedural speed , and the satisfaction of the parties involved.

Thus, both mediation and arbitration offer significant advantages that justify their adoption whenever compatible with the nature of the dispute. Among the main benefits are:

• Speed: Faster processes compared to traditional judicial procedures.
• Economy: Reduction of procedural costs and legal fees.
• Confidentiality: preservation of the privacy of the parties.
• Runtime: The parties have greater control over the outcome of the process.
• Preserving relationships: important in business or family disputes.

In this way, adopting the appropriate method not only increases the chances of an effective and lasting solution, but also contributes to strengthening the culture of dialogue and social pacification.

The closing thought

In the midst of an overburdened judiciary, mediation and arbitration are indispensable tools for those seeking more efficient, consensual, and specialized solutions within the scope of civil procedure. Based on the Code of Civil Procedure, the Mediation Law, and the Arbitration Law, these methods are gaining prominence as viable alternatives to state jurisdiction, promoting speed, cost savings, and greater satisfaction for the parties involved.

Do you want to deepen your knowledge and specialize in innovative solutions for procedural disputes? Enroll in the Postgraduate Program in Civil Procedural Law at IDP . With a practical approach, renowned professors, and up-to-date content, you will be prepared to excel in mediation, arbitration, and all aspects of civil procedural practice.

References

AL., André Pagani de Souza; Andrea Boari Caraciola; Carlos Augusto de Assis; et al. General Theory of Contemporary Procedure. Rio de Janeiro: Atlas, 2024. E-book. (1 online resource). ISBN 9786559776276. Available at: https://integrada.minhabiblioteca.com.br/books/9786559776276.

BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/ConstituicaoCompilado.htm.

BRAZIL. Law No. 9.307, of September 23, 1996. Provides for arbitration. Available at: https://www.planalto.gov.br/ccivil_03/leis/l9307.htm.

BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm.

BRAZIL. Law No. 13.140, ​​of June 26, 2015. Provides for mediation between private parties as a means of resolving disputes and for the self-composition of conflicts within the scope of public administration; amends Law No. 9.469, of July 10, 1997, and Decree No. 70.235, of March 6, 1972; and repeals paragraph 2 of article 6 of Law No. 9.469, of July 10, 1997. Official Gazette of the Union: section 1, Brasília, DF, June 29, 2015.
NATIONAL COUNCIL OF JUSTICE (CNJ). Resolution No. 125, of November 29, 2010. Provides for the National Judicial Policy for the appropriate treatment of conflicts of interest within the Judiciary. Available at: https://atos.cnj.jus.br/atos/detalhar/156.