Highlights of the CAM-CCBC Mediation Rules of 2024

Maria Luiza Neves^[1]

Mayara Lima Ribeiro de Souza^[2]

Nelson Martins da Silva Neto^[3]

 

On August 1, 2024, the Deliberative Council of the Center for Arbitration and Mediation of the Brazil-Canada Chamber of Commerce (“CAM-CCBC”) approved the 2024 Mediation Rules (“Rules”). These Rules introduced important innovations to the demands of the corporate market while maintaining provisions from the previous Rules (“2016 Rules”) that have proved effective.

This brief paper highlights the main innovations of the new Rules compared to its predecessor, outlining the roles of the CAM-CCBC Secretariat (“Secretariat”), the Mediator, and the Presidency of CAM-CCBC (“Presidency”) under the new provisions, and briefly addresses the financial aspects set forth in the new Table of Expenses and Mediator’s Fees in Mediation (“Table of Expenses”).

1) Request for Mediation: Article 1.1.1 of the Rules outlines the requirements for submitting a Request for Mediation. If the request is submitted without the required information, the Secretariat will contact the Requesting Participant to assist him/her in completing the missing details. It is worth noting that, in line with the principle of voluntariness, mediation can be proposed even without a contractual provision.

2) Pre-Mediation Session with the Secretariat: The “preceding meeting” from the 2016 Rules is now referred to as the “pre-mediation session” in the new Rules. This session does not constitute the commencement of the Mediation proceedings and is informational in nature, aiming to clarify Participants’ questions about mediation and to build rapport between them and the Secretariat. As a rule, these sessions are held separately with each Participant.

3) Third-Party Funding: Article 3.1.1 requires Participants to disclose the existence of third-party funding for the Mediator to check any potential conflicts of interest. This good-practice disclosure, already incorporated into CAM-CCBC-administered arbitrations, has now been introduced in mediation to aid the Mediator in fulfilling their duty of disclosure, as required by CAM-CCBC’s Code of Ethics and Conduct for Mediators.

4) Appointment of the Mediator by the Presidency: In addition to the consensual appointment of a Mediator and the selection through lists (as provided in the previous Rules), Article 3.6 allows Participants to specify desired characteristics for the Mediator, which will be considered by the Presidency when possible. If the Presidency makes the selection, a list of three names will be presented for the Participants to rank in order of preference. The final appointment will be based on the cumulative ranking of each name.

5) Co-Mediation: Article 4 maintains the possibility of co-mediation, as it was previewed in the 2016 Rules. Co-mediation, involving two or more distinct professionals, is particularly recommended for more complex cases, such as those with multiple participants, significant values, highly technical issues, and/or a need for a multidisciplinary perspective. As in the 2016 Rules, co-mediation may be recommended by the Mediator or requested by the Participants, with the second professional appointed by the Mediator in both cases.

6) Continuous Time Limits: Departing from the previous system, Article 12.5 stipulates that the time limits in the Rules will be continuous and include weekends, excluding only non-business days. This change aims to expedite the process, particularly during the administrative phase, before the signing of the Terms of Reference.

7) Suspension of Statutory Limitation Periods: Article 5.1 refers to the suspension of statutory limitation periods during the mediation process, according with Article 17, sole paragraph, of Law No. 13,140/2015. Although already stipulated by law, reiterating this in the Rules provides Participants with greater security and clearly defines that the signing of the Terms of Reference establishes the procedure.

8) Mediation Procedure: Article 6 innovates by structuring the mediation process, allowing the Mediator to request written memorials from the Participants outlining their interests and objectives in the mediation. Additionally, Article 6.3 establishes the requirement for those present at the mediation to prove their authority to negotiate and sign agreements, ensuring that negotiations occur with authorized representatives. Article 6.3.1 encourages Participants to ensure the same representative attends all sessions, providing consistency in negotiations.

9) Processing of Personal Data: Article 11 adapts CAM-CCBC’s mediation procedures to best practices in the collection, use, processing, transfer, and storage of personal data, creating a more secure environment both during negotiations and after the mediation process, with assurances that all processed data will be destroyed or returned once mediation is concluded, as stipulated in Article 11.4 of the Rules.

10) Publication of Statistical Data: Article 12.2.1 allows CAM-CCBC to publish statistical data related to mediation proceedings under its administration, without naming Participants or revealing identifiable information. These publications contribute to the development of best practices in alternative dispute resolution methods, aiding in academic and market research on the subject.

11) Mediation and Other Dispute Resolution Methods: Article 12.4 establishes that mediation can be initiated before, during, or after a judicial or arbitral proceeding. The commencement of arbitration or lawsuit does not prevent the mediation process from continuing or starting if it is in the Participants’ common interest. This prevents resistance to mediation due to worries that arbitration or lawsuit might be suspended.

12) Electronic Files and Videoconferencing: Addressing the need for innovation and environmental sustainability, the new Mediation Rules eliminate paper documents, instinctively instructing a fully electronic procedure. In addition, in-person meetings from the previous Rules now extend to include remote and hybrid formats.

13) Administration Fee: The administration fee will now be split between Requesting and Requested Participants, with each party covering 50% (fifty percent) of the fee.

In summary, the new Rules were developed based on CAM-CCBC’s experience administering mediation procedures under the 2016 Rules and the expertise of the CAM-CCBC Mediation Advisory Council, composed of professionals with significant practical and academic knowledge of mediation and other alternative dispute resolution methods, to update and incorporate market-driven needs.

Finally, we will briefly outline the mediation timeline under the new Rules:

 

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