I – INITIAL PROVISIONS
1.1 CAMARB – BUSINESS ARBITRATION CHAMBER – BRAZIL, hereinafter referred to as CAMARB, has as its objective the administration of arbitration proceedings and other extrajudicial forms of dispute resolution. Its institutional activities do not involve any jurisdictional act.
1.2 The mediation procedure is voluntary, non-binding and based on the good faith and will of the parties.
1.3 The CAMARB Mediation Rules, now referred to as the “Rules”, will apply whenever so agreed between the parties, regardless of the existence of a mediation or staggered clause that stipulates the adoption of the mediation rules of CAMARB or the Minas Gerais Arbitration Chamber, the previous name of CAMARB.
1.4 Unless otherwise provided, the Rules in force on the date of the Mediation Request will apply.
II – MEDIATORS
2.1 The CAMARB Board of Directors will be solely responsible for preparing the list of mediators.
2.2 Both members of the CAMARB Mediators List and others who are not part of it may be appointed as mediators, as long as they are capable individuals who are trusted by the parties.
2.3 The person(s) appointed to act as mediator(s) will sign a document informing any circumstance that may give rise to justifiable doubts regarding their impartiality and independence, in relation to the parties or the dispute subject to mediation, as well as declaring in writing that they have the technical competence and availability necessary to conduct the mediation within the stipulated period.
2.3.1 If, during the course of mediation, the mediator becomes aware of the existence of a fact or circumstance that may affect his impartiality or independence, he must inform the parties and CAMARB of the need for his withdrawal.
III – REQUEST FOR MEDIATION
3.1 Anyone wishing to resolve disputes through mediation, under the administration of CAMARB, must communicate their intention to the Secretariat of that entity, indicating:
I – name, physical and electronic address and full qualifications of the parties involved and their lawyer, if any;
II – full copy of the instrument containing the mediation or escalation clause, if any;
III – brief summary of the subject of the dispute;
IV – summary of claims;
V – estimated value of the dispute.
3.2 All documents submitted by the parties must be delivered to the CAMARB Secretariat in a sufficient number of copies to be forwarded to the mediator(s) and to the other parties, if applicable, with no documents remaining in the custody of CAMARB, except for a copy of the Mediation Request and a copy of the Mediation Contract.
3.3 Communications from the CAMARB Secretariat and the mediator and copies of the parties' statements will be sent to the party or, if there is an attorney appointed by the party, exclusively to the latter, by letter, email or any other form of written communication sent to the address provided by the party(ies) to the Secretariat.
3.4 When requesting the institution of the mediation procedure, the applicant must make a non-refundable deposit of his/her share of the Administrative fee.
3.5 If the requirements of items 3.1, 3.2 and 3.4 are not met, the Secretariat will establish a deadline for compliance. If the requirements are not met within the deadline granted, the Mediation Request will be archived, without prejudice to the possibility of a new request.
3.6 The CAMARB Secretariat will send the defendant, at the address provided by the claimant, the Mediation Request and its attachments, as well as a copy of this Rules and the list of names that make up its List of Mediators so that, within 15 (fifteen) days from its receipt, it can respond to the request.
3.7 If the defendant is not found, the claimant will be immediately informed and must provide a new address to the CAMARB Secretariat within 10 (ten) days, under penalty of the mediation request being archived, without prejudice to the possibility of a new request.
3.8 If the opposing party refuses to participate in the mediation, the CAMARB Secretariat will communicate this fact in writing to the requesting party.
IV – PRE-MEDIATION
4.1 If both parties have preliminarily agreed to participate in the mediation procedure, they will be invited to appear at the CAMARB headquarters on a date, time and place previously scheduled by the CAMARB Secretariat for the pre-mediation interview to be held.
4.2 The pre-mediation interview may, at the discretion of the parties or at the suggestion of the CAMARB Secretariat, be conducted by telephone conference.
4.3 The pre-mediation interview will be conducted by the CAMARB Secretariat with each party, separately, unless the parties have previously agreed to conduct it jointly.
4.4 The pre-mediation interview will have the following objectives:
I - Clarify the parties about the objectives, techniques, stages and costs of the mediation procedure
II - Clarify to the parties the role and responsibilities of the mediator(s), the parties and their lawyers;
III -Guide the parties in the criteria for choosing the mediator(s), if necessary;
IV - Make it clear to the parties that the mediator will not act as a lawyer for the parties, will not provide any type of consultancy or advice, and will not assume any personal or professional responsibility for the agreement;
V - Highlight the importance of the presence of the parties involved throughout the mediation process, in person or represented by people who have decision-making power in relation to the dispute;
VI - Ask the parties to indicate whether the people who will participate in the procedure have the necessary powers to reach any agreement;
VII - Clarify that, in principle, only the parties and their lawyers will participate in the mediation sessions, and any participation by third parties must be previously communicated and agreed with the opposing party and the mediator(s);
VIII - Explain the general terms of the Mediation Agreement;
IX - Clarify to the parties the possibility of mediation being conducted by a single mediator or in conjunction with mediation, with double payment of fees;
X - Clarify to the parties that the agreement will only be reached if that is what the parties wish, and no liability whatsoever can be attributed to either the mediator or CAMARB for any failure to reach an agreement.
V – APPOINTMENT OF MEDIATORS
5.1 The CAMARB Secretariat will ask the parties to appoint, by mutual agreement, within 10 (ten) days from the date of the pre-mediation interview, mediator(s) to act in the mediation procedure.
5.2 If it is necessary for the mediator(s) to be appointed by the CAMARB Board of Directors, the parties will be notified so that they can express their views, within a maximum period of 5 (five) days from receipt of the communication, regarding the criteria to be observed by the Board of Directors when choosing the mediator(s), such as any preference for the mediation style (facilitative, transformative or evaluative), technical or legal knowledge in a specific area, proficiency in a language or nationality of the mediator.
5.3 Based on the statements mentioned in item 5.2, the CAMARB Secretariat will forward to the parties a list of mediators with a minimum of three nominations, including their respective resumes, requesting that each party nominate, from among the names on the list, the mediators with whose appointment they would agree, within a period of 5 (five) days.
5.4 The mediation will be conducted by the mediator jointly appointed by the parties or, if there is more than one, by the one chosen by the CAMARB Board of Directors.
5.5 If there is no coincidence of indication, the Board will appoint the mediator, meeting the criteria established above.
5.6 Once the mediator(s) have been appointed, the CAMARB Secretariat will ask them to, within 10 (ten) days, state any possible impediment.
5.7 After receiving the statement of availability, accompanied by the declaration of non-impediment and independence by the CAMARB Secretariat, the parties will be granted a period of 5 (five) days to offer, with justification, any objection to the mediator(s).
5.8 In the event of objection by the mediator(s), they will receive notice from the CAMARB Secretariat to respond within 5 (five) days, after which the parties will be granted access for the same period.
5.9 If any appointed mediator dies, is declared impeded or suspect or becomes unable to perform the function, and the parties agree to continue the mediation, they must jointly appoint another mediator within 10 (ten) days, otherwise the replacement will be appointed in accordance with item 5.2.
5.10 When more than one party is a claimant or defendant, and the dispute is submitted to more than one mediator, the claimant or multiple claimants must appoint one mediator, while the defendant or multiple defendants must appoint another mediator.
VI – MEDIATION CONTRACT
6.1 After the appointment of the mediator(s), the CAMARB Secretariat will prepare the draft of the Mediation Contract, which will contain:
I - Name, profession, marital status and address of the parties and their lawyers, if any;
II - Name, profession and address of the appointed mediator(s);
III - The matter that will be the subject of mediation and the summary of the claims;
IV - The language in which the mediation procedure will be conducted;
V - The designation of the place, date and time of the mediation sessions;
VI - The confidentiality clause and its scope;
VII - The duration of the mediation;
VIII - The provision that the mediator may not act as an arbitrator or witness in judicial or arbitration proceedings that are related to the subject of the conflict brought to mediation;
IX – Determination of the form of payment of the mediator(s) fees and the Administrative fee, as well as the declaration of responsibility for the respective payment and for the mediation expenses;
X – Signature of the parties, the mediator(s) and a member of the CAMARB Secretariat.
6.2 The parties and the mediator(s) must sign the Mediation Agreement in a session specially designated for this purpose, at which time the Administrative fee and the mediator(s)' fees will be paid, in accordance with these Rules.
6.3 Mediation shall be deemed to have commenced at the time of signing the Mediation Agreement.
VII – PROCEDURE
7.1 The steps and rules of the mediation procedure will be defined by the mediator(s) themselves and clarified by them at the beginning of the first mediation session.
7.2 Mediation sessions may be held together or separately, depending on the mediator's understanding.
7.3 If deemed necessary, the mediator may request the parties to present in writing, in a succinct manner, within a period of up to 10 (ten) days before the date set for the first session, a brief report of the facts, describing, if possible, an analysis of their interests, needs and possible risks of the dispute, as well as any documents they consider important for correctly informing the mediator about the issue in dispute.
7.4 If the parties do not express an opinion to the contrary, the mediator must consider such information and documents as confidential.
7.5 In order to ensure the effectiveness of the procedure, the parties must prove that the people present at the mediation sessions have the power to represent them and make the necessary decisions for the effective resolution of the conflict, including signing an agreement.
7.6 The mediator may limit the number of people representing each of the parties in order to provide a conducive environment to the smooth running of the procedure.
7.7 The mediator must observe the rules of conduct set out in the CAMARB Code of Ethics for Mediators.
7.8 The mediation procedure will be considered concluded: (i) upon reaching an agreement between the parties, (ii) in the event of a declaration by either party of lack of interest or the impossibility of reaching an agreement, or (iii) by decision of the mediator(s) when they consider that an agreement is unlikely.
7.8.1 In the cases provided for in item 7.8, the parties or the mediator, as the case may be, must inform the CAMARB Secretariat of their decision, without it being necessary to state their reasons.
7.9 Once the mediation procedure is concluded, all documents submitted by the parties or produced during the mediation will be made available to the party that submitted them for a period of 30 (thirty) days. After this period, CAMARB may destroy all documentation.
7.9.1 The mediator shall destroy all notes and other documents received or produced by them during the mediation.
7.10 The presence of a lawyer representing the party in mediation is optional. When present, the lawyer must sign the confidentiality agreement.
7.11 If the parties reach a final solution to the conflict and it is not possible to reduce the definitive agreement to writing, a document will be drawn up before the end of the mediation session, which will contain the general guidelines regarding the points to be addressed in the preparation of the aforementioned definitive agreement. This document must be signed by all parties and their attorneys.
7.11.1 The confidentiality of mediation does not apply to this document, which can be used to prove the terms of what was agreed upon either in ordinary court or in arbitration.
VIII – Administrative fee, MEDIATOR FEES AND OTHER EXPENSES
8.1 The expenses inherent to the mediation procedures administered by CAMARB will be determined in accordance with the Expenses Table that is in force at the time of the Mediation Request and include the Administrative fee, the Mediator's Fees and other expenses referred to therein.
8.2 In the event of non-payment by either party of the Administrative Fee and/or Mediator Fees within the time and amounts stipulated in the Schedule of Costs, the other party may collect the respective amount on behalf of the defaulting party in order to allow the mediation to take place. If the Administrative fee and/or fees are not paid in full within 15 (fifteen) days, the mediation will be suspended and may be resumed after the aforementioned payment has been made.
8.3 The suspension due to non-payment may not exceed 30 (thirty) days, after which the mediation will be considered terminated. The amounts related to the Administrative fee and Mediator Fees paid up to that point will be reverted in favor of CAMARB and the mediator(s), respectively.
8.4 Expenses incurred for the performance of acts in the mediation procedure shall be borne by the party requesting the respective measure or by both parties if the measure is initiated by the mediator(s) or is provided for in these Rules. The CAMARB Secretariat may request from the parties an advance of a sufficient amount to cover the expected expenses for the mediation, in an amount to be stipulated according to the specific case, an amount that shall be subject to the rendering of accounts.
8.5 At the end of the mediation procedure, CAMARB will be responsible for assessing the amounts paid by the parties in order to determine whether additional payments will be necessary, whether as Mediator Fees, as a supplement to the Administrative Fee or, eventually, reimbursement of expenses, which must be duly proven by CAMARB or by the mediator(s), as the case may be. If, however, there is a remaining balance in favor of the parties, this will be reimbursed to them.
IX – FINAL PROVISIONS
9.1 In the event that arbitration proceedings are initiated after mediation has taken place, unless expressly agreed between the parties and the mediator, anyone who has participated as a mediator for the same dispute may not act as an arbitrator.
9.2 Due to its non-binding and confidential nature, the mediator(s) are prevented from acting as a witness in any legal or arbitration proceedings that may be instituted to resolve the same conflict.
9.3 The mediation procedure will be strictly confidential, and CAMARB, the mediator(s), the parties themselves and all other participants are prohibited from disclosing any information to which they have access as a result of their duties or participation in the mediation procedure without the express consent of all parties, except in cases where there is a legal obligation to disclose.
9.4 The confidentiality of mediation encompasses all information, documents and data presented by the parties, the mediator(s) and others involved in the mediation procedure, from the submission of the Mediation Request by the interested party until the end of the procedure, whether or not there has been an agreement between the parties, except only: (i) information and documents expressly identified as non-confidential; (ii) documents and information of public knowledge; (iii) documents and information that were already known to all parties involved, and were not protected by a confidentiality obligation agreed upon in a separate clause, term or contract.
9.5 In the absence of stipulation by the parties, the place of mediation will be the headquarters of CAMARB.
9.6 In the absence of agreement between the parties, the mediator(s) shall determine the language or languages of the mediation proceedings, taking into account all relevant circumstances, including the language of the contract, if any.
9.7 The eventual initiation of judicial or arbitration proceedings shall not prevent the continuation of the mediation procedure, nor its commencement, if this is in the interests of the parties. If an agreement is reached in the mediation, this must be brought to the attention of the state judge or arbitrator responsible for conducting the respective proceedings by the parties or their lawyers so that he or she may approve the agreement, if this is in the interests of the parties, and put an end to the proceedings, if all the contentious issues24 have been resolved by means of the agreement signed by the parties.
9.8 It will be up to the mediator(s) to interpret and apply these Rules in everything that concerns their competence, duties and prerogatives.
9.9 Any omissions will be resolved by the mediator(s) or by the CAMARB Board, if one has not been appointed.
9.10 The CAMARB Board of Directors will be responsible for defining the Schedule of Costs and the List of Mediators.
9.11 The Schedule of Costs and List in force at the time of the Mediation Request apply.
9.12 This Rules, registered at the Registry Office of Titles and Documents of Belo Horizonte, Minas Gerais, may only be changed by resolution of the CAMARB Board of Directors.
