Conflict resolution permeates our lives, from the personal to the professional sphere. Choosing the appropriate method to resolve a conflict can have a significant impact on time, cost and final result.

In this brief article, we will generally explore the characteristics, advantages and disadvantages of self-compositional and heterocompositional conflict resolution methods.

Under the umbrella of self-compositional methods, the parties involved have full control of the process involved in the dispute and its outcome. This scenario is governed by the consensus of the parties who may or may not count on the collaboration of third parties to reach an agreement and also continue, suspend, abandon or restart negotiations to resolve that conflict.

Heterocompositive methods are decided by one or more third parties who make final decisions, so that the parties have no control over the result.

The most common examples of self-compositive methods are negotiation, conciliation, mediation and dispute board.

Negotiation is an institute that has its own specific persuasion techniques. It is a simple and direct model of negotiation between the parties, in which they choose the time, place and object of negotiation, that is, they personalize the resolution of that conflict. The goal is to reach an agreement that is mutually beneficial to the parties, focusing on their interests and objective criteria.

In conciliation, the Parties are assisted by a neutral third party, the conciliator, who can allow the suggestion of an agreement. Pursuant to art. 165 § 2 of the Brazilian Civil Procedure Code (“CPC”):

“The conciliator, who will act preferably in cases where there is no previous relationship between the parties, will be able to suggest solutions to the dispute, and the use of any type of constraint or intimidation for the parties to reconcile is prohibited.”

Generally, negotiation lasts for a shorter period of time and concerns less complex conflicts, but, like everything in Law, there are exceptions.

In mediation, the parties are also assisted by a neutral third party, called a mediator, who will encourage understanding between them in order to find their own solutions. In this sense, art . 165, §3 of the CPC provides that

“ The mediator, who will act preferably in cases where there is a previous link between the parties, will help interested parties to understand the issues and interests in conflict, so that they can, by reestablishing communication, identify, for themselves, consensual solutions that generate mutual benefits ” .

The mediator will lead the communication process between the parties, with the aim of seeking understanding and consensus between them and facilitating the resolution of the conflict. It is very common in complex conflicts that require the maintenance of the relationship between the parties.

Finally, we have the Dispute Board, or the Dispute Prevention and Resolution Committee, generally used in long-term contracts. In this instrument, the parties insert a specific clause that may provide standards for the constitution, performance and remuneration of the Committee, formed by one or more independent and impartial professionals. By waiving redundancy, the committee will act to prevent and resolve conflicts that may arise during the execution of the contract.

In general, self-compositional resolution aims to a) resolve conflicts before the end of contracts and b) prevent (i) wear and tear in the commercial relationship; (ii) the reduction in the efficiency of services; (iii) the emergence of more complex conflicts and; (vi) high costs due to the lack of immediate solution to problems.

Heterocompositional methods are composed of common justice and private justice. In the first, the resolution of conflicts submitted to the Judiciary depends on the manifestation of the State (without the possibility of choosing the judge). The decision given by the judge is subject to appeal and this professional has the power of coercion and execution.

In the second, we mention arbitration, an extrajudicial way of resolving conflicts of available property rights, which offers advantages such as flexibility, specialization of arbitrators, irrevocability of the decision, confidentiality, among others.

Having made this brief explanation regarding the most common conflict resolution methods, it is important to understand that choosing the most appropriate one for your conflict must count on the assistance of a lawyer and take into account the nature of the conflict, the complexity of the issues involved and the preferences of the parties, to achieve fair and effective solutions.

Danielle Farah Ziade – Lawyer. Founding Partner of Ziade Advocacia. Master in Law. Member of Cbar. Cbar Blog Coordinator.

Article published on Ziade Advocacia’s Linkedin.