FAQ

Mediation is considered a technical activity performed by an impartial third party without the power to decide, which, chosen or accepted by the Parties, helps and encourages them to identify or create consensual solutions for the controversy (Art. 1 sole paragraph of Law Nº. 13,140 of June 26, 2015).

In the modern world today where agility is a constant need and the search for solutions providing an attractive “cost-benefit” has become compulsory, mediation has appeared as an important mechanism for solving disputes on the contemporary business landscape. It offers results that come closer to the interests of those involved, since they work directly and actively to settle the conflict, supported by their lawyers when it involves a matter of the law, in an effective and economic manner.

Differently to the Judiciary, mediation is a confidential procedure by nature, which makes it especially attractive for litigation involving business secrets or other intangible assets. It may also involve assets and rights seated in other jurisdictions.

Lastly, it is important to clarify that, being a voluntary procedure, mediation may be terminated at any time, by any of the Parties or by the mediator, including for the conflict to follow along another path (courts or arbitration).

Since mediation does not involve any decision by the mediator, the Parties may even abandon the procedure after it has started, without undergoing any adverse effects. Participating in mediation is entirely voluntary.

Mediation provides an open and confidential dialog, favoring relationships and listening among the Parties, which are often diminished by virtue of the conflict. Being a creative and flexible process, it enables the Parties themselves to build solutions not previously thought of, focusing towards the future. Mediation further provides the developing of more effective skills for managing future conflicts, developing a collaborative posture between those involved.

In mediation, Parties may tackle all relevant and negotiable matters within a same procedure, not being limited to the object of the dispute, thus providing a broader, faster and more economical solution.

The mediator, an impartial third party, specialist in conflict management, works as a guardian of the mediation process, assuring the balance between the Parties throughout the process, which enables potential and binding solutions to be achieved, created by the Parties themselves and their lawyers.

In mediation, conflict solving is only upon agreement by the Parties, after identifying interests in common and reaching a mutually acceptable accord and not by deliberation of a third party chosen by them, as in arbitration. Although the roots of arbitration equally lie in consensus, as it is born of the expression of the will of the Parties in an arbitration agreement, it is characterized by being an adversarial and neutral procedure, whereby at its end a third party, also impartial and usually chosen by the Parties, will decide the case definitively, in a binding manner. The arbitration award is qualified by the Brazilian civil procedural law as a judicial title, with power of enforcement comparable to that of a court decision.

In the event of a conflict, the Parties may at any time opt for mediation, even in the face of an adversarial procedure (judicial or arbitral), suspending it for a term agreed upon by the Parties and their lawyers.

Choosing this means of settling conflicts at a time prior to the existence of the dispute may occur by mere will of the Parties or by including a conflict mediation clause in a contract.

Accordingly, CMed-ABPI provides a model mediation clause on the website, as also explained in detail in the response to the next question.

CMed-ABPI model:

Any conflict originating, relating or arising from the present Contract and related to any of its subsequent amendments, including, but not limited to, its formation, validity, effectiveness, interpretation, enforcement, noncompliance or termination, will be submitted, prior to the installment of a judicial procedure or arbitration, to mediation administered by the Mediation Chamber – CMed-ABPI of the Center for Settlement of Disputes, Mediation and Arbitration in Intellectual Property of the Brazilian Association of Intellectual Property CSD-ABPI, in accordance with the Regulations and the Rules of Order of Mediation of the CMed-ABPI, except in the cause of urgent or provisional measures. Mediation will take place at [specify place]. Mediation shall be conducted in the [specify] language.

Any private citizen or legal entity interested in seeking a consensual solution for a conflict. It is fundamental that the potential participant of a mediation procedure has powers to decide over the object of the mediation.

The purpose of mediation is to assist the Parties to seek a joint and negotiated solution in an agile manner that satisfies their interests, so as to bring an existing conflict to an end. Given the direct engagement of the Parties, it is commonplace in a mediation procedure to note new alternatives and paths to transform the existing relationship of conflict between the Parties into a dialog marked by consensus, which the Parties were unlikely to achieve if they were not willing to debate the issue. Notwithstanding the willingness of the Parties to discuss the conflict in which they are involved, in a different way to which they are accustomed to relate to each other, the fact that the procedure is conducted by an impartial and specially qualified third party contributes to find solutions previously not thought of to be built and worked jointly in conjunction with the Parties.

CMed-ABPI is specialized in managing conflicts involving intellectual property rights, franchises and technology. However, it is also apt to mediate conflicts in other areas.

The flexibility of the mediation procedure enables the Parties to freely choose what they wish to discuss, and may also alter the object of the discussions during the course of the procedure.

CMed-ABPI is an abbreviation for the “Mediation Chamber of the Brazilian Association of Intellectual Property (ABPI)”. The ABPI is a non-profit entity, founded on August 16, 1963 and focused on the study of Intellectual Property, notably industrial property law, copyright law, competition law, transfer of technology and other similar branches.

As a highly recognized and specialized entity, it has a select bench of mediators trained and equally specialized in Intellectual Property, Franchises and Technology, in the areas listed above, who have broad technical and practical ability to decide disputes of the parties interested in settling the complex conflicts of today’s world. CMed-ABPI also stands out for offering costs that are accessible to parties interested in settling their disputes by mediation, acting with diligence and zeal in managing the procedures under its responsibility.

The first mediation meeting is an informative meeting about the procedure, its rules, guidelines and principle markers. At this meeting, the mediator will introduce the Parties to general notions of the art of mediation and the working guidelines of a procedure conducted by CMed-ABPI, providing them the opportunity to clarify any queries or concerns on the matter, ultimately culminating with closure or signing of the Terms of Reference. The Parties may attend with or without their lawyers.

The first mediation meeting will follow the conditions set out in the agreement between the Parties, if such exists, in the Regulations and in applicable law. It will be conducted by a Mediator chosen by the Parties or, in the absence of consensus or recommendation, indicated by the Chamber Director, pursuant to the Regulations.

The mediator is an impartial third party who will conduct mediation, acting as a qualified facilitator of communication between those involved in the conflict.

In performing his or her function, the mediator will not issue a judgment value, will not advise the Parties, nor will he or she deliver a decision on the controversy under discussion. He or she will act to help the Parties so that they themselves (assisted or not by their lawyers) seek possible solutions to settle the conflict in which they are involved, assuring balanced participation and fair treatment for all throughout the procedure.

The presence of lawyers is not compulsory. However, legal advice is recommendable concerning legal aspects related to the topics tackled in mediation. Lawyers also play a crucial role in preparing acts and legal documents, including a possible agreement, which may arise from the procedure.

The costs of a mediation procedure will essentially depend on the length of time and number of hours worked by the mediator and basically consist of the following items:

i) Initial Administration Fee: due once the request to set up a procedure has been filed, it shall be paid in full by the Party requesting mediation. It is not redeemable nor reimbursable. It includes the initial administration and the meetings prior to signing the Terms of Reference, up to a limit of 2 (two) hours.

ii) Additional first meeting fee: due after the lapse of 2 (two) hours of meetings prior to signing the Terms of Reference, should the Parties require further time and fresh meetings for signing the Terms of Reference. It is not redeemable nor reimbursable. Payment of this fee must be equally apportioned among the Parties, unless established otherwise.

iii) Half-yearly administration fee: due after signing the Terms of Reference and for as long as it remains pending. Payment of this fee shall be apportioned equally among the Parties, every six months, unless specified otherwise in the Terms of Reference.

Should the Parties opt for an external mediator (non-CMed-ABPI) and/or non-member of the ABPI, then the half-yearly administration fee shall correspond to double its normal value.

The administration fee is not redeemable nor reimbursable, and shall be due every six months, regardless of the number of months effectively used.

iv) Mediator fees: is the value corresponding to the hours worked per professional, the mediator being assured a minimum of 10 (ten) hours, under the terms of Art. 9.3 of the CMed-ABPI Regulations. It shall be paid in equal parts by the Parties or as stipulated thereby in the Terms of Reference, by deposits in advance. Where mediation is conducted by more than one Mediator, the hours must be computed taking into account the number of professionals appointed to act in the case.

v) An expenses fund shall be constituted by the Parties in favor of CMed-ABPI, or as stipulated thereby in the Terms of Reference, such that any expenses incurred by the Mediator(s) and by CMed-ABPI by virtue of the procedure in course, such as photocopying, mail, translation, travel costs, trips, etc. are deducted from this amount.

The amounts relating to the above items and further information can be consulted in the Table of Prices and mediator fees of CMed-ABPI, available in Costs on the CMed-ABPI website following the link www.csd-abpi.org.br.

A mediation procedure set up at CMed-ABPI follows that prescribed in its Regulations, and can be by two ways, namely:

i) By joint request of the Parties, who shall state their interest in submitting a certain controversy to mediation; or

ii) By request of any Party, on its own, in which case an invitation will be sent to the other party to join the procedure, should it so wish.

iii) In both cases indicated above, the party(ies) must complete a Mediation Registration on the CMed-ABPI website (www.csd-abpi.org.br) Thereafter, follow the instructions to generate a request for mediation.

Once the registration for new mediation by CMed-ABPI has been received, an invoice will be sent for payment of the applicable fees. Proof of payment of fees will be appended to the request to set up mediation, commensurate with Art. 9.2 of the Regulations.

CMed-ABPI will send an invitation to the Parties and to their lawyers, as applicable, scheduling a day and time to attend the first mediation meeting, informative of the procedure and the rules, and the Parties may attend with or without their lawyers.

The length of time for mediation varies in each case. An agenda of meetings will be organized by mutual agreement of the Parties and the mediator. CMed-ABPI stipulates a minimum of 10 hours per mediation, not including the hours resulting from the first mediation meeting. The meetings may take place with just one of the Parties and the mediator (caucus) or with all the Parties, by means of a mutually agreed upon schedule.

In order to safeguard the agility and brevity of the mediation procedure under its coordination and administration, CMed-ABPI has prescribed a maximum term for closing a mediation procedure of 180 (one hundred and eighty) days, counted from signing the Terms of Reference. However, this term may be extended, by mutual agreement, by the mediator(s) and by the Parties. In the hypothesis of mediation arising from a lawsuit, the applicable legal conditions shall be followed.

Mediation Law Nº. 13,140 of June 2, 2015, prescribes, in Art. 2 and paragraphs thereof, that in the hypothesis that a mediation clause is contractually provided, the Parties must attend the first mediation meeting, though no-one is obliged to remain in the mediation procedure.

The invitation to mediation does not oblige a party to participate in mediation. If the invitation is not accepted, then the mediation procedure is closed.

However, once the invitation is accepted, the presence of the Parties at the meetings agreed upon is indispensable for the progress of mediation. Should attendance be impossible, then the party must inform, with minimum notice of 24 (twenty-four) hours, the Secretariat of CMed-ABPI, who will contact the mediator and the other party.

Should one of the Parties fail to attend, the mediator will appraise the possibility of postponing the meeting and resumption of the mediation per se, and, in the event that this is not possible, the procedure will be closed.

Although it is strongly recommended that the Parties should always be the same throughout mediation, it is exceptionally possible that a party be represented by an agent having powers to decide and knowledge of the facts, should it not be possible to attend owing to an emergency.

Mediation may close:

i) By agreement or solution of the issues brought to mediation, whereby satisfying the wish of the Parties. Any agreement may be total or partial;

ii) By expression of the will of any Party, should it no longer be interested in pursuing mediation, for whatever reason;

iii) By the mediator, should he or she understand that it is appropriate to interrupt the procedure, as governed by the CMed-ABPI Regulations.

Yes, mediation is confidential by nature. Additionally, the Terms of Reference contains an explicit non-disclosure clause, whereby the Parties and the mediator commit to uphold the privacy of all the confidential information disclosed during the procedure.

Yes. Mediation is particularly convenient for complex litigation irradiating through various jurisdictions. The ABPI mediators have specialist knowledge in intellectual property, franchises and technology, which facilitates the understanding of dissent, and assistance to Parties so they themselves can reach a consensual settlement. Furthermore, mediation is by nature confidential and may include assets and rights in other jurisdictions.

Since (i) no decision is served by the mediator, (ii) the Parties may abandon the procedure at any time and (iii) everything handled in the Mediation is confidential, and cannot be reproduced, not even at other instances of litigation between the Parties, then there is no risk of any adverse effects in this procedure.