Partners, not Rivals

by Rory Van Loo ’07

This summer while Brazil was erupting in protests I traveled to the country’s capital Brasilia to speak at the government’s first national conference on mediation and conciliation. Although the Brazilian protests had at times shut the country down as hundreds of thousands of Brazilians took to the streets demanding an array of governmental reforms, I knew the chances of the conference being disrupted were minimal in large part because it was being hosted by the country’s National Council of Justice.   The council’s leader—Brazil’s Chief Supreme Court Justice Joaquim Barbosa—had attained hero status among the protesters due to his tough anti-corruption stance.

Chief Justice Barbosa kicked off the conference with brief remarks, saying, “Conciliation and mediation demonstrate that the exercise of justice is not necessarily a game with winners and losers. Being able to view the parties as partners, not rivals, is one of the most important steps that the judiciary can take to affront the many challenges that still need to be overcome.” His words were applauded enthusiastically by the 800 conference participants attending from all over the country.

When I addressed the auditorium a few minutes later, I generally drew on some of the Harvard Negotiation and Mediation Clinical Program’s work, and also on relevant literature such the new book co-authored by HNMCP Director Robert Bordone, Designing Systems and Processes for Managing Disputes, and Tom Tyler’s research on procedural justice, to take more of a design and systems-oriented lens on the question of developing mediation in Brazil. The conference organizers had stressed to me that most of the participants consisted of Brazilian judges, mediators, and other leaders in developing alternative dispute resolution and were interested in hearing a U.S. perspective on their task ahead.

Professor Giuseppe de Palo, of Hamline University School of Law and also of JAMS International, spoke on research on mediation in Italy, including the country’s experiment with mandated mediation and how the typical mediation case shaved years off the amount of time it took to resolve a case.

The rest of the day consisted of breakout sessions. In one, I had the chance to discuss pedagogical ideas with Brazilian mediation teachers. Diego Faleck LL.M. ’06, a former student of Prof. Bordone’s (Negotiation Workshop and the original Dispute Systems Design reading group) and Partner at Faleck & Associados, led another breakout session. Mr. Faleck, along with a group of leaders such as Judge Andre Gomma de Azevedo and Judge Jose Roberto Neves Amorim, have been leading much of the national effort to develop mediation in the Brazilian courts.

While improving dispute resolution in such a large country will be no easy task, the enthusiasm for the task evident at the conference—and surprisingly strong judicial leadership—made me optimistic that at least in this area of societal reform Brazil has a lot of promise for progress.