Teaching Mediation In Brazil And Australia: Can We Improve Access To Justice?

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

 

By Professor Cristiana Vianna Veras, Visiting Scholar at Flinders University 

 

The development of the mediation as an institution can be understood as global phenomenon, since several countries present different state and societal experiences of this form of conflict resolution. Although some countries have been working to institutionalize mediation for more than three decades, we can say that mediation is still a “young” experience and now seems to have spread everywhere. In Brazil, the institutionalization of mediation began in 2009 and was encouraged in the field of the Judiciary through a public policy to promote the application of consensual forms of conflict resolution that, through a discourse of social pacification and better adaptation of the form of treatment of social conflicts, sought to reduce the number of lawsuits, currently one of the biggest problems confronting the Brazilian judicial system.[1]

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Professor Cristiana Vianna Veras presenting her work at the 7th ADR Roundtable on 4 December 2018

Different actors participate in the applied field of mediation in Brazil. On the one hand, as a pioneer in this field, non-governmental organizations and private institutes, were first responsible for implementing the initial practical training of the first mediators, and have since multiplied in number. On the other hand, the State, or more specifically, the Judiciary has reserved to itself the task of conducting mediations. Alongside these two main actors, a third can now be added: Brazilian law schools, which also participate in mediation in different ways.

In Brazil, law schools are overseen by the federal government, through regulations determined by the Ministry of Education. All law courses must conform to a core curriculum specified by national directives, although each law school is free to interpret this normative guidance. Due to this national curriculum, all law courses cover a range of theoretical disciplines and many courses include in this curriculum a topic on alternative dispute resolution and/or mediation.

In addition to theoretical subjects, all Brazilian law courses are obliged to offer a Center of Legal Practice that can act from simulations (abstract cases) and / or from a real service aimed at low-income people, with some courses offering mediation simulations or offering this possibility of conflict resolution to the local community.

Hence, there are three distinct possible spaces for mediation in law courses in Brazil: a theoretical space, a space of simulation and a space for serving the low-income population. Creating new dialogue within and between these actors who participate in the movement toward institutionalizing mediation is one of the primary goals of my research.

One perspective that helps to better understand these dialogues is the phenomenon of access to justice captured by the metaphor of waves by Mauro Cappelletti and Bryant Garth.[2]  These scholars identified measures implemented by different countries to make legal services more efficient, to better protect collective rights and to make the highly bureaucratized Judiciary more informal.

Mediation is mainly connected with the third wave of Cappelletti, as it is included in the experiences of alternative dispute resolution (ADR), and the trilogy of arbitration, conciliation and mediation that together constitute the process of informal justice. However, mediation is not just an alternative way of conflict resolution. To understanding of its full scope and meaning we should add to the three waves of Cappelletti, a fourth wave identified by Kim Economides[3] in 1997, namely lawyers’ (and judges) access to justice. This fourth waves also raises the issue of what kind of justice it is that which we wish to give access to?
Since mediation is a way of resolving conflict by the “parties themselves” (but with the assistance of a mediator), it may define new criteria of justice – which do not necessarily correspond to the criteria of state/legal justice – in the light of the parties’ own understanding of what is fair and appropriate for them.

In this context, many questions arise: how does mediation – theoretical, simulated or practical – act in terms of the different access to justice waves? What impact does a course on theoretical mediation have on law students? How many law students will intend to use mediation in their professional practice? Is there a more appropriate form of teaching mediation in order to encourage students to work with mediation in their future professional practice? Does experience with the simulations and/or real cases brought by low in-come users encourage students to use mediation in their professional practice?

Also important, is the response of law students exposed to this new form of conflict resolution confined to Brazil? Or is it the case that, in other countries where mediation has been longer established, we find a different response? Do these countries still have a dominant adversarial legal culture? To try to answer these questions, I am conducting comparative and empirical research on law students from three universities: Flinders University, Fluminense Federal University (UFF/public) and Pontifical Catholic University (PUC/private). After comparing the process/methods of the teaching of mediation in Brazil and in Australia, and whether they motivate law students to work with mediation in their future professional practice, I will analyze the contribution of teaching mediation in law school to the process of improving access to justice.

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There was strong engagement with Chris’ work during her session, including from commentator Dr Lola Akin Ojelabi, LaTrobe Law

Professor Cristiana Vianna Veras is a Visiting Scholar at Flinders University – Adelaide/SA in 2018/2019. She is also a Professor at School of Law of Federal Fluminense University – Rio de Janeiro/Brasil. Cris can be contacted on veras04@hotmail.com and cristiana.viannaveras@flinders.edu.au

[1] To understand the process of implementing of mediation in the Brazilian Judiciary and the main objective behind the official state discourse, see two studies of cases: Kilpo, Klever Paulo Leal. Dilemas da mediação de conflitos no Tribunal de Justiça do Rio de Janeiro. Tese de doutorado apresentada à Universidade Gama Filho. Rio de Janeiro: 2014 and Veras, Cristiana. Um estranho na orquestra, um ruído na música: a apropriação da mediação pelo poder judiciário a partir de uma experiência no Cejusc do TJRJ. Tese apresentada à Universidade Federal Fluminense. Rio de Janeiro: 2015.

[2]  Cappelletti, Mauro e Garth, Bryant. Acesso à Justiça. Porto Alegre: Sérgio Fabris, 1988.

[3] Economides, Kim. “Lendo as ondas do “Movimento de Acesso à Justiça”: epistemologia versus metodologia?” in Dulce Chaves Pandolf e outros (orgs). Cidadania, justiça e violência. Rio de Janeiro: Editora Fundação Getúlio Vargas, 1999. English version: Economides, Kim “Reading the Waves of Access to Justice” Bracton Law Journal, Vol.31, 1999, pp.58-70.

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This entry was posted in Dispute resolution and tagged , , , , by Associate Professor Becky Batagol. Bookmark the permalink.

About Associate Professor Becky Batagol

Dr Becky Batagol is an Associate Professor of law at the Faculty of Law, Monash University and at Monash Sustainable Development Institute. She is a researcher and teacher with a focus on family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky is the chief-editor of the ADR Research Network blog and tweets regularly under the handle @BeckyBatagol. Becky is the Chief Editor of the Australian Dispute Resolution Research Network blog. In 2017 Becky was the President of the Australian Dispute Resolution Research Network.

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