Labor Mediation in Brazil - From Paternalism to Consensus

IVONE HIROMI TAKAHASHI SARAIVA

Economics degree, Global Planning postgrad (ILPES/ECLAC, Santiago de Chile);

Executive and Marketing MBAs (COPPEAD/UFRJ);

Harvard Negotiation Project – Coaching, Mediation, Arbitration and Business Negotiation Theory and Tools, Harvard Faculty Club, (Cambridge – MA-USA).

ABSTRACT

The Labor Law No. 5,432/43, promulgated in 1943, better known as CLT – Consolidation of Labor Laws, was partially altered in July 2017, when it was first reformed by Law 13,467 of July 13, 2017. This new law brought major changes in labor relations, particularly with the introduction of the principle of the will of the parties. Based on this principle, relations are no longer strongly protected by the state and are based on consensus between employee and employer, creating an environment conducive to mediation in labor relations. Recently, Law 13,874/19 known as the Economic Simplification Law reinforced the autonomy of companies and the possibility of using mediation in the labor field. This article seeks to identify and analyze the challenges that will be present on the path to greater adoption of mediation in this context.

RESUMO

A lei trabalhista de número 5.432/43, promulgada em 1943, mais conhecida como CLT – Consolida??o das Leis do Trabalho, foi alterada parcialmente em julho de 2017, quando teve a sua primeira reforma feita pela Lei 13.467 de 13.07.17. Essa nova lei trouxe grandes modifica??es nas rela??es trabalhistas, particularmente com a introdu??o do princípio da vontade das partes. Com base nesse princípio, as rela??es deixaram de ser fortemente tuteladas pelo Estado e passaram a ser baseadas no consenso entre empregado e empregador, criando um ambiente propício à media??o nas rela??es de trabalho. Recentemente, a Lei 13.874/19, conhecida como a Lei de Simplifica??o Econ?mica, refor?ou a autonomia das empresas e a possibilidade de utiliza??o da media??o no campo trabalhista. Procura-se no presente artigo identificar e analisar os desafios que estar?o presentes no caminho em dire??o à maior ado??o da media??o neste contexto.

 SUMMARY

I – Introduction; II – A brief comment on the use of mediation in other countries; III – Labor legislation transformed: from paternalism to consensus; III.1 – The existing scenario under Brazil's Consolidated Labor Laws (CLT); III.2 – Law 13.467/17 – 'The New Labor Law'; III.3: Case law analysis; III.4: Law 13.874/19 (Economic Freedom Law) and other advances; IV – Fostering the use of mediation in the labor environment; IV.1: New practices being adopted; IV.2 – Legal certainty for mediation agreements; IV.3 – Challenges for actors involved in mediation;  V – Conclusions and Suggestions.

I – Introduction

1. This article addresses the following subjects:

a)      Chapter II – A brief comment on the use of mediation in other countries: some differences in the practice of mediation.

b)     Chapter III – Labor legislation transformed: from paternalism to consensus: Law 5.432/43 (Consolidated Labor Laws, local acronym CLT) v. the new Labor Law 13.467/17 and its main principles, some important precedents decided to date, and Law 13.874/19 (Economic Freedom), which also affects labor relations.

c)      Chapter IV – Mediation for labor and employment issues: mediation practices that have been adopted, legal certainty for agreements reached by mediation and challenges facing mediators;

d)     Chapter V – Conclusion and suggestions.

Note that the methodology used in this article is based on an analytical and deductive approach, historical-comparative methods and bibliographical, jurisprudential and documentary research techniques.

II – A brief comment on the use of mediation in other countries

The use of mediation as one of the non-judicialized means of conflict resolution has been growing in different ways in several countries and is now widespread in Italy, the United Kingdom, the Netherlands, Denmark, Argentina and more recently Turkey.

Growth in other countries such as the US and Canada has been slower but steady[1], particularly for business, commercial, consumer and labor conflicts, while mediation is also being introduced in other areas such as corporate finance, environment, intellectual property, and real estate.

It is growing because it is more confidential and less formalistic while being flexible and retaining control over procedure, which ultimately means that conflict resolution through mediation is less expensive, quicker and more controlled in terms of risk. Countries such as Italy and Argentina have seen mediation progress in several sectors reflecting public policies[2] requiring contracts to include opt-out clauses, making mediation a mandatory stage before a conflict is judicialized (so parties wishing to opt out have to do so formally).

On the other hand, an article by Professor Thomas J. Stipanowich[3] suggests that mediation is spreading slowly because judges and lawyers are not sufficiently aware of its efficacy. In the context of conflicts, they may be wary of losing ground to non-lawyers in particular, since professionals other than lawyers may also act as mediators.

More widespread awareness of the advantages of mediation may gradually mitigate the aforementioned difficulties listed by Professor Stipanowich and ensure the method is used more often in every sector of the economy.

 III – Labor legislation transformed: from paternalism to consensus

III.1: The existing scenario under Brazil's Consolidated Labor Laws (CLT)

In Brazil's case, mediation has been making slower progress, possibly for the reasons suggested in Professor Stipanowich's article. The Brazilian constitution expressly grants all citizens the right to justice and access to the benefits of free legal services provided by the State, which often means people being less responsible when resorting to the judiciary: hence the unusually huge backlog of lawsuits in Brazil.

This far-reaching judicialization is affecting every type of conflict in every area of practice as cases pile up in all five of the court system's segments: state, federal, electoral, military and labor, as well as the 4 higher courts.

Statistics for the Judicial branch reported in Justi?a em Números – 2018[4], a recent publication including data for 2017, show the scale of the backlogs in each of the aforementioned segments as of December 31, 2017. For the court system as a whole, the "congestion rate[5]" metric reached 72%: there were 29.1 million new cases, 31.9 million removed and 80.1 million pending.

In the specific case of labor law, the previous period under the CLT involved highly regulated labor and employment relationships that drove high levels of judicialization in this area[6].

When the CLT first came into effect, Brazil was a mostly rural society (about 70% of the population). Workers were less educated and less capable of organizing collectively to demand their rights.[7]

Paternalistic legislation in this situation reflected the notion of the workforce being the weaker party. For the same reason, the State retained control over procedures for elections of workers' representatives while its policy for labor unions assured funding (union dues were compulsory, and funds only loosely controlled by government and workers) and the right to represent workers[8] (each local union had a monopoly over a given territory, which could not be smaller than a municipality or larger than a state, a union for each occupation and economic activity). In many cases the unions that emerged from this arrangement did more to favor the interests of the elite groups in control than those of their own members.

Demands were not always based on ethical, moral or factual principles. Less-than-ethical lawyers colluded to file huge claims, and even if they lost their cases, there were no adverse consequences for complainants, while the State bore the burden of adding to its structures to cater for the growing numbers of labor claims filed.

By 2017, the labor and employment court system's Congestion Rate had reached 55.2%: there were 4.3 million new cases, 4.5 million removed and 5.5 million pending.[9] The main labor issues were:

a)      Employment contracts and termination/severance payments (71.1%);

b)     Employers' civil liability for pain and suffering (10.1%);

c)      Pay, compensation and benefits, wage levels and differences (7.7%);

d)     Employment contract, termination/unemployment insurance (6.5%);

e)      Pay, compensation and additional benefits (4.6%).

III.2: Law 13.467/17 – 'The New Labor Law'

Enacted on July 13, 2017, Law 13.467 gave the legislation more substance by modernizing and adapting the law to the current reality of the workforce, which was by then 80% urban and better informed. It introduced several progressive aspects for labor relations and a great opportunity to introduce mediation while reducing the volume of lawsuits filed in labor courts, in particular:

a)      Agreements between workers and employers on countless issues[10], particularly collective bargaining and contracts prevailing over legislative provision, and the possibility of freely agreed workdays, within constitutional limits;

b)     Agreements officially ratified; the new law allows extrajudicial settlements to be submitted to a labor court for ratification, thus mitigating the risk of subsequent judicialization.

c)      Losing party costs for lawsuits varying from 5% to 15% of the amount litigated, enabling judges to determine reciprocal court costs, thus making legal action quite costly for employees.[11]

d)     No more compulsory "labor union tax". Under the old CLT, a day's pay per year was deducted to fund unions. This is no longer compulsory, so unions have to be more efficacious and responsible.[12]

e)      Under the new legislation, workers in companies with headcounts of 200 or more may elect workplace committees. These bodies are tasked with fostering dialog and reaching agreements directly with employers in order to prevent conflicts or jointly seek solutions to conflicts arising from labor issues, while doing so quickly and effectively to ensure an effective application of legal and contractual rules and strengthened employee representation.

f)      Changed benefit involving free access to courts. Before the new law was introduced, workers simply submitted a statement claiming that they could not afford to pay for a legal action. This was enough to exempt them from any legal expenses, including the expert witness evidence that is always required in these cases. This benefit, without proof of hypo-sufficiency, is now restricted to those who earn up to 40% of the INSS ceiling, that is , up to R$2,335.78.

g)     Pain and suffering. There are now limits to amounts claimed in actions for pain and suffering. Compensation for serious offenses committed by an employer or in a workplace may reach a maximum of 50 times the employee's most recent contractual salary. On the other hand, companies also gained the right to be compensated for workers' violations, and again the calculation base is an employee's monthly pay.

As a consequence of these measures and others enacted by the new labor law, there has been a huge fall in numbers of labor claims and amounts claimed, with a more responsible approach to litigation.

Statistics from December 2018 show that the number of new lawsuits filed with labor courts was down 36%. By August 2018, the number of cases awaiting trial had fallen from the aforementioned 5.5 million to 1.9 million pending cases.

The principle of respect for the will of the parties, present in several articles of the aforementioned law, has been encouraging the increasing use of non-judicial dispute resolution instruments such as arbitration[13], as well as mediation and conciliation, for issues involving intraorganizational conflicts, collective bargaining, harassment, hours worked and so forth.

III.3: Case law analysis

Gradual progress made in deciding new labor lawsuits under the reformed legal provisions (Law 13.467 of July 13, 2017) has led to jurisprudence clarifying the reach of the 2017 legislation and affording more legal certainty, such as:

a)      Temporary work: Under these contracts, workers provide services during alternating periods and are paid proportionally, i.e. only for periods actually worked. This type of service must be registered on their official employment record (a portable booklet or card), and the law stipulates certain rights such as year-end bonus (aka 13th monthly salary), proportional vacation pay, and deposits made to the FGTS (severance fund). According to the High Labor Court (TST), temporary work contracts will assure basic rights for informal-sector workers who were earning a living by doing "gigs" without formal contracts or guarantees rights, in addition to fighting unemployment. Rather than precarious situations, they lead to legal certainty for workers and employees, based on clear rules that stimulate job creation. In August 2017, the TST validated temporary contracts as a new format added by the Labor Law and therefore a fully valid form of employment relationship. The Law also stipulates that this type of contract may be used for any activity[14].

b)     Extrajudicial agreement with general settlement of all pending disputes on matters agreed, not involving full and irrevocable discharge of rights arising from an employment contract.[15]

c)      Once ratified by the Judiciary, this type of agreement will be judicially enforceable; therefore, any breach or default may be executed judicially, thus more flexibly without further delay.

III.4: Law 13.874/19 (Economic Freedom Law) and other advances

Law 13.874/19 (aka the Economic Freedom Law) was passed to simplify the business environment. It has also impacted the labor legislation by cutting through the red tape and making several aspects of the Labor Law more flexible[16] as shown below, thus strengthening autonomy for companies and employees and enabling the use of mediation to settle their conflicts:

a)      Individual electronic employment records making it easier for companies to update records within 48 hours and benefits for employees, who will have all their details registered and available to them within 48 hours;

b)     Time keeping: detailed breakdowns of employees' hours worked no longer needed;

c)      Banks may open Saturdays;

d)     Permits no longer required for low-risk activities;

e)      Digital data system replacing and simplifying the reporting of tax, social security and labor/employment obligations;

f)      Piercing the corporate veil;

g)     A company cannot use the assets of another company belonging to the same conglomerate to settle its debts;

h)     Legal transactions: parties to a transaction may freely decide how to interpret an agreement between them, and even the outcome differs from legally stipulated rules.

More recently, Brazil's government and Congress have been working on new changes to labor and employment rules such as:

a)      Occupational safety – simplifying rules for workplace hygiene and comfort, inspections and penalties, embargoes and interdictions, making it easier for companies with up to 10 employees to ensure compliance. These rules will also be simplified for micro and small businesses[17].

b)     Revised model labor union governance – in particular ending one single local union's monopolistic right to organize [a certain occupational category in a specific territorial jurisdiction], thus making representation more authentic and more effectively protecting workers[18].

c)      Constitutional Amendment Bill No. 136/2019, which will add an item to the Constitution's Article 5 on the use of extrajudicial means of conflict resolution as a basic citizen right, which may well encourage more widespread use of mediation.[19]

IV – Fostering the use of mediation in the labor environment

IV.1: New practices being adopted

The extent of private mediation initiatives in the labor/employment sphere is still limited; there are no statistics on this subject. In the judicial sphere, labor disputes have been mostly resolved by conciliation (a method of conflict resolution based on reaching agreement rather than examining relations between parties to a conflict) and have been the subject of numerous labor claims brought before labor courts under the coordination of the Labor Court System's High Council (Conselho Superior da Justi?a do Trabalho, or CSJT).

In both the public and private spheres, most agreements have settled conflicts over amounts paid related to compensation.

On the other hand, some companies are already beginning to use mediation in organizational (intra-company) conflicts that include harassment or bullying and divergent views on career advancement, as in the case of Banco do Brasil.

IV.2: Legal certainty for mediation agreements

The current legislation makes labor/employment agreements extrajudicially enforceable instruments. When ratified by the judiciary, they become judicially enforceable, thus adding to the legal certainty of these agreements.

Statistics from the Labor Court system show that applications to ratify extrajudicial agreements grew 2,440% from December 2017 to September 2018. The ratification process starts with a joint petition from attorneys – legal representation is mandatory.

IV.3: Challenges for actors involved in mediation

The various actors involved have shown growing awareness of the numerous advantages of mediation, as mentioned above, including its savings in terms of expense and time required, as well as punctual payment of fees, while conserving relationships. For a more widespread use of mediation, however, there remain major challenges to be tackled.

Before going on to explore the key challenges for each party involved in the process, an important point to note is that there are aspects of interpersonal behavior, such as empathy, resilience, tolerance and the ability to join pieces together in order to solve a problem, which will be increasingly in demand in the present period, not only for mediation, but also to enhance life in society.

Challenges include:

a) Challenges for companies/employers:

Given the new Labor Law and further amendments still in progress, we believe the main cultural or operational challenges facing companies/employers will be:

i)       Ensuring that news on the benefits of mediation reach all employees and particularly executives and HR teams.

ii)     Creating a favorable environment for mediation in companies.

iii)   Creating an ombudsman position that will report to the president or the board, therefore off the executive chain of command, thus showing an impartial approach to conflict, while also getting a company's ombudsman and its legal department to work together and keep legal actions to a bare minimum.

iv)   Analyzing how a company handles conflict, which is based on its culture and decision-making process, in order to prevent conflicts or find better ways of dealing with them. An important aspect for this analysis is to compare the costs incurred by companies for the type of conflict resolution currently in use against the costs of mediation, both in relation to financial expenses as such and the time spent, as well as deteriorating intra-company and external relationships.

v)     Intervening quickly before a conflict escalates.

vi)   Using mediation to handle stoppages or strikes. The right to withdraw labor will always be there, but in this situation, the right to be paid for days not worked is suspended too, while a company's lost production means lower revenues and knock-on effects throughout the supply chain. In addition to resolving conflicts, mediation may rebuild relationships between employees and employer.

vii) Drafting or amending employment contracts to make them clearer while exploring different types of agreements available under the new Law.

viii)           Introducing conciliation/mediation clauses for employment contracts in general and arbitration clauses specifically for contracts stipulating salaries more twice the maximum determined for Social Security -General Regime benefits, which is currently R$11,062.62, including reference to arbitration formats to be used.

ix)    Encouraging/incentivizing executives to find negotiated solutions to conflicts in their area.

x)      Introducing online mediation, which may streamline processes.

b. Challenges for employees:

i)       Carefully reading and discussing the employment contracts they are signing.

ii)     Learning about the benefits of mediation and preparing for mediation processes.

iii)   Hiring attorneys to help negotiate conflicts and draft agreements rather than pursuing judicialization.

c. Challenges for lawyers:

i)       Dropping the litigant mindset, they have been trained to cultivate and moving on to support mediation; helping negotiate conflict, constantly finding the best solutions for the parties' interests, and drafting agreements they have reached.

ii)     Pursuing judicial ratification of agreements – should their clients wish to do so – in order to boost legal certainty for agreements and clients.

d. Challenges for labor unions:

i)       In the context of the new law, labor unions will have to reexamine their approach in order to meet new needs of workers and companies; balancing these forces and helping companies grow in a fast-changing scenario of major challenges, helping create more jobs, benefits, fair pay and constant occupational or professional advancement.[20]

ii)     Labor unions will urgently need training in negotiation/mediation techniques in order to prepare them to support workers in mediation/arbitration processes, thus regaining the active role in relations with employees that was partially weakened when the compulsory annual payments of dues to labor unions (aka "union tax") were abolished.

e. Challenges for mediators:

i)       Given this new period of modernized Labor Laws and the nature of the work itself, mediators will require more technical training in techniques used to mediate and keep up with the progress in labor and employment relationships.

f. Challenges for mediation institutions and education:

i)       Reaching out to companies and professional associations to show the benefits of mediation. An important point here is that all mediation-related institutions, private and public, have been developing ongoing efforts to raise awareness through seminars, courses and emergency interventions in the form of collective initiatives to process legal actions organized by the Labor Court System's High Council (Conselho Superior da Justi?a do Trabalho, or CSJT) as mentioned above.

ii)     Constantly updating mediation programs for educational institutions while keeping track of legislation and ongoing transformations of employer-employee relations.

iii)   Introducing courses in mediation – for all colleges rather than just law schools – in order to change the mindset of all professionals, perhaps extending their reach to include elementary schools. For law schools, although teaching mediation is already mandatory, this content is usually left for the final year, thus postponing opportunities for students to learn about extrajudicial conflict resolution techniques.

On this last aspect, I would highlight the work of two organizations: the Institute for Certification and Training of Lusophone Mediators – International Mediation Institute (local acronym ICFML-IMI) and the Private Corporate Mediation Study Group of the Brazilian Arbitration Committee (GEMEP/CBAr), as well as the Café com Media??o movement, which has very ably taken on the task of promoting mediation.

V – Conclusions and Suggestions

This chapter summarizes the main points covered by the article and highlights points that may help spread the use of mediation in the areas of labor and employment issues:

·        The characteristics of mediation as an instrument – its confidentiality, being less formal while ensuring flexibility and control over processes – tend to make conflict resolution cheaper and quicker while enhancing risk management;

·        Italy, Argentina and other countries have seen a more widespread use of mediation reflecting public policies that added mediation as a mandatory stage before conflicts can be judicialized (known as the opt-out clause);

·        In the specific case of labor and employment law, far-reaching detailed control of labor relations under Brazil's old Consolidated Labor code (local acronym CLT) prompted far-reaching judicialization;

·        Law 13.467, enacted on July 13, 2017, added new substance to the labor legislation by modernizing and adapting it to the current situation in which the country's 80% urban workforce has extensive access to information. The 2017 law led to much progress for labor relations and created a great opportunity for mediation while, as a byproduct, reducing the volume of cases filed with labor courts;

·        The gradual move to a preponderance of actions tried under the new labor law (Law 13.467 of July 13, 2017) has created jurisprudence that has offered major clarifications for the aforementioned Law and afforded greater legal certainty;

·        Law 13.874/19, aka the Economic Freedom Law, which was introduced to simplify the business environment, has also impacted the labor legislation and strengthened companies and employees’ autonomy and ability to resolve their conflicts, thus encouraging more use of mediation in these conflicts;

·        More recently, Brazil's government and Congress have been working to further simplify labor and employment law by changing practices for occupational safety and labor union governance, among other initiatives[21];

·        The use of private mediation for labor conflicts is still limited. In the judicial area, labor disputes have been resolved more by conciliation (conflict resolution by pursuing agreement rather than dissecting relations between the parties to the conflict) and large-scale collective initiatives to settle issues;

·        There are companies that are beginning to use mediation in organizational (intra-company) conflicts, mostly for bullying and differences over career development;

·        The current legislation makes labor/employment agreements extrajudicially enforceable instruments; when these agreements are approved by the judiciary, they become judicially enforceable and are afforded more legal certainty.

In conclusion, we believe the changes introduced in the labor legislation have led to major opportunities for mediation in employer-employee relations in Brazil, but there are still challenges for all actors involved in the context: businesses/employers, employees, lawyers, labor unions, mediators, mediation and educational institutions. We believe these challenges may be successfully addressed by actors reaching consensus.

Practical measures such as the opt-out clause required by the new Code of Civil Procedure (CPC) – in which the new Article 334[22] will require claims to go through a formally attested mediation/conciliation process before being judicialized, rather than setting a final date for objecting as currently stipulated – could accelerate the use of mediation in general. To ensure their feasibility, however, it may be advisable for this requirement to be gradually introduced by area of practice, for instance by starting with family and employment conflicts, in which parties have an interest in preserving the continuity and quality of their relationships. Argentina has broadened coverage to almost all areas of practice, so parties are required to pursue mediation before legal proceedings as per Law 26.589/10 (which repealed Law 24.573/95), thus evincing clear progress in relation to the repealed law.

Another practical measure could be to start teaching mediation in all colleges from the beginning of the course, thus showing students new forms of conflict resolution rather than just judicialization.

With practical and effective initiatives and general awareness of society seeking and adopting peaceful means of conflict resolution, and recognizing skills used to improve interpersonal relationships, the challenges posed in this article may be more easily addressed to the extent that the gains from using mediation become larger and more palpable.

References

CAVALLINI, Marta. Em quase 2 anos de reforma trabalhista, 15% das vagas criadas no país s?o para intermitentes [During almost 2 years of labor law reform, 15% of jobs created in Brazil are for temporary workers], In: Portal G1, September 25, 2019. Available at:https://g1.globo.com/economia/concursos-e-emprego/noticia/2019/09/25/em-quase-2-anos-de-reforma-trabalhista-15percent-vagas-criadas-no-pais-sao-para-intermitentes.ghtml, accessed November 6, 2019.

CONSELHO NACIONAL DE JUSTI?A. Justi?a em números – 2018, base year 2017. Available at https://www.cnj.jus.br/wp-content/uploads/2011/02/8d9faee7812d35a58cee3d92d2df2f25.pdf, accessed November 6, 2019.

DE PALO, Giuseppe. O “Paradoxo da Media??o na UE” ao Longo dos últimos Dez Anos. Quando uma Diretiva da UE Precisa Ser Mais... Diretiva. Relatório por solicita??o da Comiss?o JURI. Uni?o Europeia, 2018, p. 1-2. Available at https://br.icfml.org/wp-content/uploads/2018/12/O-Paradoxo-da-Mediac%CC%A7a%CC%83o-na-UE-ao-Longo-dos-U%CC%81ltimos-Dez-Anos-.pdf, accessed: November 6, 2019.

DIAP – DEPARTAMENTO INTERSINDICAL ASSESSORIA PARLAMENTAR (Labor unions joint parliamentary advisory service)). Governo prepara novas reformas sindical e trabalhista, In Portal DIAP (DIAP website), September 5, 2019. Available at: https://www.diap.org.br/index.php/noticias/agencia-diap/29078-governo-prepara-novas-reformas-sindical-e-trabalhista, accessed November 6, 2019.

INSTITUTO JURITI. Meios extrajudiciais de solu??o de conflitos podem se tornar direito fundamental do cidad?o. Available at: https://www.institutojuriti.com.br/post/meios-extrajudiciais-de-solu%C3%A7%C3%A3o-de-conflitos-pode-se-tornar-direito-fundamental-do-cidad%C3%A3o, accessed November 6, 2019.

MARTINS, José Celso. Direito do Trabalho – Direito Individual ou Coletivo? JTB. Jornal Trabalhista Consulex, v. 01, p. 04-07, 2013.

RODRIGUES, Eduardo. Governo faz nova rodada de simplifica??o de normas de seguran?a no trabalho. In: Portal Estad?o (Estad?o website), September 24, 2019. Available at: https://economia.estadao.com.br/noticias/geral,governo-faz-nova-revisao-de-normas-de-seguranca-no-trabalho,70003022210, accessed November 6, 2019.

STIPANOWICH, Thomas J. The International Evolution of Mediation: A Call for Dialogue and Deliberation. 46 Victoria University of Wellington Law Review 1191 (2015). Pepperdine University Legal Studies Research Paper No. 2016/1. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712457, accessed: November 6, 2019.

STIPANOWICH, Thomas; LAMARE, J. Ryan, Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations (2013). 19 Harvard Negotiation Law Review 1; Pepperdine University Legal Studies Research Paper No. 2013/16, p. 3-30. Available at https://ssrn.com/abstract=2221471, accessed: November 6, 2019.

TAKANO, Rodrigo Seizo; BIANCALANA, Fernanda J. Potenciais impactos trabalhistas da convers?o em lei da MP da Liberdade Econ?mica (MP 881/2019). In Inteligência Jurídica (Machado Meyer Advogados exclusive content), August 22, 2019. Available at: https://www.machadomeyer.com.br/pt/inteligencia-juridica/publicacoes-ij/trabalhista-ij/potenciais-impactos-trabalhistas-da-conversao-em-lei-da-mp-da-liberdade-economica-mp-881-2019, accessed November 6, 2019

TEIXEIRA, André Coelho. A liberdade fortalecerá os sindicatos, In Gazeta do Povo, Curitiba, September 9, 2019. Available at: https://www.gazetadopovo.com.br/opiniao/artigos/a-liberdade-fortalecera-os-sindicatos/, accessed November 6, 2019.

NOTES

[1] STIPANOWICH, Thomas; LAMARE, J. Ryan, Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations (2013). 19 Harvard Negotiation Law Review 1; Pepperdine University Legal Studies Research Paper No. 2013/16, p. 3-30. Available at https://ssrn.com/abstract=2221471, accessed: November 6, 2019.

[2] DE PALO, Giuseppe. O “Paradoxo da Media??o na UE” ao Longo dos últimos Dez Anos. Quando uma Diretiva da UE Precisa Ser Mais... Diretiva. Relatório por solicita??o da Comiss?o JURI. Uni?o Europeia, 2018, p. 1-2. Available at https://br.icfml.org/wp-content/uploads/2018/12/O-Paradoxo-da-Mediac%CC%A7a%CC%83o-na-UE-ao-Longo-dos-U%CC%81ltimos-Dez-Anos-.pdf, accessed: November 6, 2019.

[3] STIPANOWICH, Thomas J. The International Evolution of Mediation: A Call for Dialogue and Deliberation. 46 Victoria University of Wellington Law Review 1191 (2015). Pepperdine University Legal Studies Research Paper No. 2016/1. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712457, accessed: November 6, 2019.

[4] CONSELHO NACIONAL DE JUSTI?A. Justi?a em números – 2018, base-year 2017. Available at https://www.cnj.jus.br/wp-content/uploads/2011/02/8d9faee7812d35a58cee3d92d2df2f25.pdf, accessed November 6, 2019.

[5]Corresponding to cases still pending solution at base-year end in relation to those processed (pending plus removed).

[6]6 DL 5452/43, CLT – Consolidated Labor Laws, with 992 articles, which, added to other laws detailing other aspects of the CLT enacted by 2011, totaled 1,098 articles.

[7] MARTINS, José Celso. Direito do Trabalho – Direito Individual ou Coletivo? JTB. Jornal Trabalhista Consulex, v. 01, p. 04-07, 2013.

[8] CLT, articles 514-625.

[9] CONSELHO NACIONAL DE JUSTI?A. Justi?a em números – 2018, base year 2017. Available at https://www.cnj.jus.br/wp-content/uploads/2011/02/8d9faee7812d35a58cee3d92d2df2f25.pdf, accessed November 6, 2019.

[10] Article 611-A and B and Article 444, sole paragraph.

[11] Fees paid by the losing party. (These fees already existed for any type of action except Labor Law, Article 791-A).

[12]Articles 579-587.

[13] Arbitration may be stipulated for salaries of more than twice the maximum for benefits paid by the General Social Security Regime, currently at the level of R$11,062.62, as per Article 507-A.

[14] CAVALLINI, Marta. Em quase 2 anos de reforma trabalhista, 15% das vagas criadas no país s?o para intermitentes [During almost 2 years of labor law reform, 15% of jobs created in Brazil are for temporary workers], In: Portal G1, September 25, 2019. Available at:https://g1.globo.com/economia/concursos-e-emprego/noticia/2019/09/25/em-quase-2-anos-de-reforma-trabalhista-15percent-vagas-criadas-no-pais-sao-para-intermitentes.ghtml, accessed November 6, 2019.

[15]This interpretation is still awaiting a definitive statement from the Federal Supreme Court (STF).

[16] TAKANO, Rodrigo Seizo; BIANCALANA, Fernanda J. Potenciais impactos trabalhistas da convers?o em lei da MP da Liberdade Econ?mica (MP 881/2019). In Inteligência Jurídica (Machado Meyer Advogados exclusive content), August 22, 2019. Available at: https://www.machadomeyer.com.br/pt/inteligencia-juridica/publicacoes-ij/trabalhista-ij/potenciais-impactos-trabalhistas-da-conversao-em-lei-da-mp-da-liberdade-economica-mp-881-2019, accessed November 6, 2019

[17] RODRIGUES, Eduardo. Governo faz nova rodada de simplifica??o de normas de seguran?a no trabalho. In: Portal Estad?o (Estad?o website), September 24, 2019. Available at: https://economia.estadao.com.br/noticias/geral,governo-faz-nova-revisao-de-normas-de-seguranca-no-trabalho,70003022210, accessed November 6, 2019.

[18] PEC 161/19.

[19] INSTITUTO JURITI. Meios extrajudiciais de solu??o de conflitos podem se tornar direito fundamental do cidad?o. Available at: https://www.institutojuriti.com.br/post/meios-extrajudiciais-de-solu%C3%A7%C3%A3o-de-conflitos-pode-se-tornar-direito-fundamental-do-cidad%C3%A3o, accessed November 6, 2019.

[20] TEIXEIRA, André Coelho. A liberdade fortalecerá os sindicatos, In Gazeta do Povo, Curitiba, September 9, 2019. Available at: https://www.gazetadopovo.com.br/opiniao/artigos/a-liberdade-fortalecera-os-sindicatos/, accessed November 6, 2019.

[21] DIAP – DEPARTAMENTO INTERSINDICAL ASSESSORIA PARLAMENTAR (Labor unions joint parliamentary advisory service)). Governo prepara novas reformas sindical e trabalhista, In Portal DIAP (DIAP website), September 5, 2019. Available at: https://www.diap.org.br/index.php/noticias/agencia-diap/29078-governo-prepara-novas-reformas-sindical-e-trabalhista, accessed November 6, 2019.

[22]Two bills seeking to amend the CPC's Articles 565 and 695 are now pending in Congress. Although similar in some respects, their scope is more limited than the coverage we have suggested here.