Originally from World Arbitration and Mediation Review (WAMR)

PREVIEW

I.  INTRODUCTION

The work of the Harvard Negotiation Project (later renamed “Program”) in the late 1970s was a turning point in the world’s theoretical and practical analysis of Alternative Dispute Resolution (ADR).  The “multi-door courthouse” concept, developed by Harvard Law Professor Frank Sander, literally multiplied the ways in which disputes can be addressed and resolved in a courthouse setting.   Its advantages allow choosing different forms of dispute resolution with techniques that are alien to the traditional judicial process, and represented the opening of a new reality to harmonize polarized concepts of justice.  The expression “multi-door courthouse” has guided studies and research along various resolutive paths.  It showed practitioners how to consider different options beyond the legal limits set by traditional litigation norms as the only way to resolve conflicts.  One of these options is mediation.  

Similarly, mediation itself as developed today can be supplemented with several other processes. In this sense we can consider an analogous use of the “term multi-door mediation.”  In a nutshell, this refers to a simple mediation combined with certain other processes.  The purpose of this article is to explain why this practice can be useful, how it works, and how it can open up more options for the parties to select to advance their mediations.

II.  RETROSPECTIVE

Since its birth in Brazil, I have followed the trajectory of mediation around the world and more attentively, its emergence and development in Brazil during the past 25 years.  I have observed its theoretical study, practical application, and its trends in their positive aspects as well as in their deviations from what one would consider “mediation” in the classic sense of the word.

A.    First Things First—Beginnings of Composite Processes in Brazil

In the 1970s, there was no news of pro-ADR movements in Brazil.  Law firms, large or small, lived on the traditional practice of adversarial advocacy protected by rights, laws, jurisprudence, and doctrinal studies—all packaged into lawsuits.  It could not even be said that business negotiation initiatives were at risk in litigation presented for resolution at law firms.  This was because it was understood that conflicts, generally speaking, involved only rights and laws, period.  Brazilian civil law guided the paths and decisions between individuals, and the Commercial Code (Código Comercial) was the parameter for relationships involving buying, selling and other business/commercial aspects.  Even so, Brazilian advocacy for ADR underwent veiled experiences with “unorthodox” ADR practices. The raising and exchange of interests, rather than the taking of purely legal positions, was adopted as a formula for resolving conflicts lived in isolated moments and was developed by individual experience. This kind of experience proved effective in breaking down the antagonistic positions of disputants, considered to be the critical point of any negotiation.