Mediation in state courts: an analytical comparison of mediation practices in the United States of America and Brazil

By Flávia Maria Aires Freire Allemão

The large caseloads to be tried in the courts and the dissatisfaction of jurisdictions with the judgments are the main reasons for the application of mediation in the courts. The culture of litigation and the Civil Law system applied in Brazil are driving factors in order to arise more lawsuits, given to a greater possibility of different decisions for similar situations, in contrast to the Common Law, applied in almost all of the United States, where the citizen is more cautious when filing lawsuits, because it is more difficult to reverse a precedent. Given the need to change this situation, a movement began in Brazil to encourage agreements between the parties in the process, with the National Council of Justice having issued the Resolution No. 125/2010 instituting mediation and, later, the provision of such institute by the new Code of Civil Procedure of 2015. The previous Code of Civil Procedure, from 1973, already regulated conciliation, although it does not have the same effectiveness as mediation in the resolution of conflicts in a more definitive way, especially in demands whose conflict parties have a continued relationship among themselves, such as those involving Family Law, for example. Indeed, among the different types of alternative methods of conflict resolution, mediation is within the best results. So, it is of fundamental importance the comparative study of the mediation in Brazil and the United States, analyzing the participants of mediation, the types of mediation, how it is applied in practice in each country, the advantages and disadvantages and thinking how to improve the institute of mediation in both countries, considering the differences and similarities between them.

• Language: English
• Publisher: Editora Dialética
• Release date: Oct 29, 2021
• ISBN: 9786525210780

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PREFACE TO FLÁVIA MARIA AIRES FREIRE ALLEMÃO, MEDIATION IN STATE COURTS: AN ANALYTICAL COMPARISON OF MEDIATION PRACTICES IN THE UNITED STATES OF AMERICA AND BRAZIL (2021)

Juíza (Judge) Flávia Maria Freire Allemão has written a significant book exploring the development of alternative dispute resolution (ADR) in Brazil and the United States, with a focus on comparing the progress and experience in each country’s state courts. Most of the concepts will be familiar to those who have studied recent developments in litigation alternatives. The broad outlines of the approaches in the two countries are similar. However, examining and comparing the details of practices in each country help us to see ways that we might work differently, to improve our practices and results. More generally, this comparative study provides insights into significant differences between the Brazilian and U.S. legal systems. As with learning a new language, the study of an unfamiliar legal approach helps us look at our own environment with greater understanding and insight.

The focus on state courts is the appropriate place to start. In both Brazil and the U.S., the smaller scale of state governments and state courts inevitably makes experimentation in individual states less complex and costly than it would be nation-wide.

The different structure of federalism and states’ roles in our two countries add to the rationale for focusing on the states. Unlike in Brazil, the U.S. States are viewed as the original source of all governmental power and authority, only some of which is delegated to the Federal Government. See, e.g., U.S. Const., Amendment X (1789). Federal government in the U.S. has become quite large and powerful, but the States retain important areas of power and autonomy. The legislatures and courts of U.S. States have an especially important role in developing new legal approaches and procedures, especially when no national consensus is yet clear. See, e.g., Cruzan v. Dir., Mo. Dep’t of Health, 261, 293 (1990), (O’Connor, J., concurring).

Brazil’s form of federalism is much more centralized than that in the U.S. and Canada. See, e.g., Charles D. Cole, Comparative Constitutional Law: Brazil and the United States 32-33 (2nd ed. 2008); Keith S. Rosen, Federalism in Brazil, 43 Duquesne Law Review 577, 582-583, 597 (2005). Even in the more top-down structure of Brazilian federalism, however, the Brazilian States have sufficient autonomy for their courts and legislatures to experiment productively with new procedures and approaches. See Rosen, supra, at 597.

Terminology presents a major challenge in most international work. ADR is no exception.

Some of the difficulties of multiple languages are obvious. Less obvious are differences in meaning between countries that speak the same language generally – but not entirely – such as Brazil and Portugal, or England and the United States. George Bernard Shaw famously observed that England and America are two countries separated by the same language. Bill Bryson provides specific examples in The Mother Tongue: English and How It Got That Way: An American going into a London department store with a shopping list consisting of vest, knickers, suspenders, jumper, and pants would in each instance be given something dramatically different from what he expected. Similarly, while Portuguese is the native language in both Brazil and Portugal, one can identify distinct differences in the ways the language is spoken and written in the two countries.

False cognates pose a particular trap for the unwary reader. For example, one might assume (as I once did), that Brazilian jurisprudência and U.S. jurisprudence are the same, but that leads to confusion that Brazilian students helped me recognize and understand. In the U.S., jurisprudence is typically understood to mean philosophy of law, or the study of the general or fundamental elements of a particular legal system, as opposed to its practical and concrete details. Black’s Law Dictionary 871 (8th ed. 2004). (The definition quoted here is the second, modern definition, and is one of seven U.S. alternatives; caselaw is offered as the seventh definition, but a U.S. lawyer is unlikely to think quickly of that.) In contrast, the primary definition of jurisprudência is Case law (o conjunto das decisões dos tribunais sobre uma determinada matéria), i.e., the set of court decisions on a specific matter. Maria Chaves de Mello, Dicionário Jurídico: Português—Inglês: Inglês—Português 309 (8th ed. 2006) (emphasis deleted and added).

Alternative dispute resolution (ADR) methods do not eliminate the challenge of resolving a dispute where no one language is spoken by all the parties. However, the greater flexibility of ADR and the opportunities for richer interactions among the parties may make help resolve the dispute in a way that is more satisfactory (or less unsatisfactory) to all the parties.

The general concepts of arbitration (arbitragem) and mediation (mediação) are similar in both Brazil and the U.S. The essential difference between the two alternatives is that in mediation, the parties retain control of the decision, and the mediator (mediador) is present only to assist the parties in reaching a mutually agreeable resolution if they can find one. By contrast, in arbitration, the arbitrator (árbitro) makes the decision, which is then binding on the parties.

The term conciliation is less familiar in the U.S. as a distinct part of Alternative Dispute Resolution (ADR). The relatively informal settlement of disputes has long been an important and helpful feature of U.S. litigation. Such resolution may occur informally among the parties by themselves, or a little less informally in a meeting of the parties with their lawyers. More formal alternatives are available in voluntary or judge-ordered mediation, or a settlement conference mandated and supervised by the judge responsible for the case. In Brazil, this idea of conciliação is separately identified as a relatively new alternative to litigio and processo judicial. The latter two terms have long been understood to mean resolution developed and announced by a judge in structured, formal proceedings.

The novelty of conciliação in Brazil reflects a significant difference between the common law and the civil law. The British and U.S. legal systems have their roots in the common law, which has long respected most appellate judicial decisions as binding precedent. These precedents generally must be followed in subsequent decisions by the same court or a court whose decisions will be appealed to that court. Of course, the analysis of whether a particular precedent should apply in a particular case can be quite complex. See generally, e.g., Karl N. Llewellyn, The Case Law System in America (1933; ed. Paul Gewirtz, trans. Michael Ansaldi 1989). In contrast, the pure civil law system recognizes statutes, but not judicial decisions, as binding statements of what the law is. Consequently, a civil-law judge typically has much greater latitude than a common-law judge to decide each case according to his or her own interpretation of the applicable law, regardless of prior judicial decisions.

In recent years we have seen some convergence of civil-law and common-law approaches, as lawyers, legislators, and judges have sought to improve each system by incorporating advantageous features of the other system. Common-law countries have increasingly adopted statutes to codify many legal rules more precisely and consistently. Some of these rules (e.g., torts like negligence, and crimes like larceny, now more commonly called theft) evolved from judicial writs in the ancient common law. Echoes of judicial decisions over the centuries can still influence the interpretation of the statutory rules. Similarly, civil-law countries have seen the advantages of predictability that comes from requiring subsequent courts to respect prior judicial decisions when the current case is identical or very similar to the prior case. Brazil has formalized this in the súmulas vinculantes (binding precedents)¹ of the Supremo Tribunal Federal (Federal Supreme Court of Brazil). See Brazilian Federal Constitution, article 103-A, and the Law nº 11.417/2006.

These benefits of predictability bring us back to considering how the availability (or not) of nonjudicial settlement has affected litigation in common-law jurisdictions and civil-law jurisdictions. A common-law litigant who knows that the applicable legal issue has been previously decided the same way in a number of authoritative cases can easily see (or be persuaded by his or her lawyer) that bringing that same issue before the court is very likely to be a costly exercise in futility; changing the binding precedent established by prior decisions is often difficult or impossible. By contrast, a civil law litigant can more rationally hope for a more favorable decision in his or her individual case, despite the existence of adverse prior judicial decisions. There is always the chance of persuading the new judge that the current case should be decided differently, despite the prior decisions going the other way. Each judge in a pure civil-law system can be more open to persuasion to reach a different decision than the prior judges. This greater basis for hope by litigants has helped to create the enormous caseloads faced by Brazilian judges.

Brazilian courts’ burden of deciding essentially the same case over and over is referred to as demandas repetitivas, the necessity to review and decide each case anew, even though it is essentially the same case that has been tried many times before with consistent results. Prior decisions may be persuasive to subsequent judges, but they are not binding in the pure civil law system. The literal English translation of this term (repetitive demands) captures the idea but is largely unknown in the U.S. Common-law precedent makes U.S. litigants and their lawyers very cautious about incurring the costs to litigate a dispute that will be governed by a well-established precedent. Both precedent and ADR can be helpful in reducing caseloads for matters where the legal rule is well-established, and ADR offers additional advantages that Juíza Flávia describes in her text.

I am honored that Juíza Flávia asked me to write this Preface. It was my privilege from 2009 to 2018 to direct the Master of Comparative Law (M.C.L.) degree program at the Cumberland School of Law, Samford University. The thesis that Juíza Flávia wrote as part of her studies in that program is the basis of this book, and I am pleased that this book will make her work available to a wider audience. Each June I led the capstone Advanced Seminar for the M.C.L. students who were finishing their course work and beginning to work on the required thesis, and I supervised the completion of each thesis (sometimes with participation by another faculty member when I thought his or her expertise could be valuable to the student’s work in a highly specialized and technical area). The group discussions in the seminar, my individual conversations and correspondence with each student about progress on the thesis, and the friendships I gained are some of the most rewarding experiences of my career. I am grateful to Juíza Flávia and all our other M.C.L. students for the privilege of working with them.

No discussion of the M.C.L. Program would be complete without acknowledging the remarkable vision and accomplishment of Professor Emeritus Charles D. Cole in designing this program and bringing it into being at the Cumberland School of Law in 1994. Professor Cole directed the program from the beginning until his retirement in 2008, when I assumed this and other responsibilities as Cumberland’s Director of International Studies.

I would also be remiss if I failed to mention the enormous and vitally important contributions to the M.C.L. Program made by Desembargadora (State Court of Appeals Judge) Maria Cristina Zucchi. She and I worked very closely together for nine years in Brazil, the U.K., and the U.S. to identify appropriate M.C.L. students, teach the required courses, and administer the Program. The students were mostly Brazilian judges, though we had students from several other countries. Neither the success of this program, nor my own work in Brazil, nor my own work with Juíza Flávia and other Brazilian students would have been possible without Desembargadora Cristina’s exceptionally capable, energetic, and dedicated efforts.

Again, my congratulations and compliments to Juíza Flávia for her success and her impressive work reflected here.

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1 "Art. 103-A. O Supremo Tribunal Federal poderá, de ofício ou por provocação, mediante decisão de dois terços dos seus membros, após reiteradas decisões sobre matéria constitucional, aprovar súmula que, a partir de sua publicação na imprensa oficial, terá efeito vinculante em relação aos demais órgãos do Poder Judiciário e à administração pública direta e indireta, nas esferas federal, estadual e municipal, bem como proceder à sua revisão ou cancelamento, na forma estabelecida em lei (The Federal Supreme Court may, ex officio or by request,