Culture of Alternative Dispute Resolution (ADR) in Brazil: An Exploratory Study of Business Mediation from the Theory, Laws and Perception of Lawyers

Abstract

Purpose: The purpose of this paper is to examine the current Brazilian scenario for resolving queries, the laws enacted and the participation of lawyers, including the studies they undertake in Brazilian law schools. This paper will focus on the extent of an ADR culture in Brazil analyzing the context of ADR’s in Southeastern Brazil (São Paulo, Rio de Janeiro, Espírito Santo and Minas Gerais) after the period of the validity in 2016 of the Brazilian Civil Procedure Code (Law No. 13.105/2015) calling for judicial 1 mediation and stimulating ADR in Brazil up to 2017 (the year of data collection). An exploratory research was done. This study also seeks to 1) present the Southeastern Brazil data on the number of mediation sessions in order to identify the growth in the use of this method and 2) check the knowledge of Brazilian lawyers on the topic of ADR’s. A bibliographic and an archival research were carried out followed by three field researches using quantitative methods. The first research was implemented on a total of 621 lawyers who responded through a questionnaire with: two variables focused on individual characteristics of the respondent, five variables on the lawyer’s studies in negotiation/ADR, and ten variables on his/her professional activities. This questionnaire was designed to identify how lawyers actually negotiate and should serve to shatter the myth that adversarial bargaining is more effective and less risky than problem-solving. It is important to mention that some elements were adapted to the Brazilian culture. The second inquiry was conducted on a total of 397 lawsuits forwarded to business mediation in Rio de Janeiro court from 2016 (91 lawsuits) through 2017 (306 lawsuits). The variables of this research were completely different from the lawyers’ questionnaire. In this one, there were 6 variables on the characteristics of lawsuits and 8 variables on the agreement settled. The third study was also done in this court on a total of 270 lawsuits. This sampling was obtained at the center dedicated to the study of the judiciary at Fundação Getulio Vargas (FGV) that is responsible for doing CNJ’s (National Counsel of Justice) reports, such as Supreme in Numbers—this report analyzes the processes in Brazilian Superior Court and Justice in Numbers. The research focused on agreements settled directly by parties without mediation. However, in this group, the data is compiled by sampling. During the study period of this thesis, 2700 lawsuits were initiated. FGV, using the software language MySQL, randomized 270 lawsuits (10%) which were analyzed by the author of this thesis based on the same elements and the previous inquiry. The analysis provided results on how ADR has been developed in Brazil. The possibility for generalizations has been confirmed for both inside and outside the courts. There is a movement for culture change and greater adoption of ADRs in Brazil. However, the paradigm shift has not yet been fully realized. The Brazilian Civil Procedure Code (Law No. 13.105/2015) calling for judicial mediation and stimulating ADR in Brazil increased the number of judicial mediation sessions. Lawyers are not familiar with the adoption of ADR as problem-solving and their acting is not seen as collaborative. This generalized performance measurement can be used in future research and for professional purposes in the ADR environment. The study also presents a comparison of business mediation done inside and outside courts.