JAMS ADR Insights
The Development of ADR and Neutrality in Brazil
Published September 30, 2011
One of the most important and essential qualities of the business of Alternative Dispute Resolution is neutrality. It is ingrained in every aspect of our approach at JAMS, right down to the term we use to describe our mediators and arbitrators: “neutrals.” However, as we’ve learned from Gabriela Asmar, the executive director of Parceiros Brasil, and one of this year’s Weinstein International Fellows, we can’t assume it’s the norm in other cultures.
“In Brazil, there is a similar arbitration practice, but commercial mediation, based on law, is still in its early days,” said Asmar. “Parties approach mediation as a collaborative negotiation, much like they would a settlement conference in the United States. They may get to a point where they agree that going to Court is not the best option to resolve their dispute. But the decision-making process is conducted by one of the parties, so he or she is not neutral, which makes it challenging to obtain a balanced and fair result. What is missing are techniques that encourage trust and efficient exchanges among the parties, such as neutrality and confidentiality.”
According to Asmar, Brazil needs an institution that can be used for neutral commercial mediation services. She estimates there are no more than half a dozen full-time professionals with both business and mediation experience in Brazil. Among the mediation practitioners, most focus on resolving family disputes. For parties in Brazil seeking to resolve disputes out of court, the most likely option is through attorneys who facilitate a negotiated settlement. What neutrality can do in these scenarios, suggests Asmar, is to help both parties achieve optimized results.
“In the United States, commercial mediation developed out of the need for efficiency in the midst of crisis. In Brazil, this is the time to develop this market based on the opposite circumstances: a booming economy in a globalized world cannot afford to be so far behind in conflict resolution options.”
Ms. Asmar was based in our JAMS New York Resolution Center and has since returned to Brazil to continue her work of creating a culture of mediation in Brazil.
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