DSD isn’t new. William Ury and colleagues in Harvard over 35 years ago developed a new possibility of resolving industry disputes based on mutual interests. On 8th February 2018 at Kings College, Dr Diego Faleck described the practical impact of designing a relatively recent dispute resolution system in Brazil following the plane crash on 17 July 2007 in which 199 people tragically lost their lives.
In short the system took 9 months to design and set up and the litigation resolved with 92% of claims settled within 2 years. It was a form of non-binding arbitration. As against the expected 20 years it would have taken for the litigation to settle in the courts in Brazil, it is little surprise that parties reported satisfaction in the early resolution of their compensation awards. Necessary ingredients to the system being effective included buy-in from the major stakeholders including government departments, enough trust and willingness to ride political risk.
Focusing on education and motivation with an appetite to learn as the claims were considered and evaluations tested was to prove a solid precedent, although no-one knew it then. Another tragedy on 1 June 2009 with the loss of 288 lives as an Air France plane bound for Paris from Brazil crashed into the Atlantic ocean. Once more there was a risk that the litigation would be prolonged in the Brazilian ‘Justice Crisis’ of court back-log. A system was needed to resolve the resultant claims. The diversity of stakeholders – 32 nationalities and cultural differences – tested the rigour of the process designed.
More pressure to build consensus arose after the environmental disaster of the collapse of the Fundao dam on 5 November 2015. Nineteen people lost their lives, thousands of claimants lost access to clean water and this pollution ruined livelihoods. The system implemented to resolve these claims had the attraction of simplicity: find people who needed to be compensated, listen to them, make the calculation of the amount of compensation and then make the award. Sixty mediators in 20 centres built trust and community engagement to accelerate the process so people could receive compensation and rebuild their lives.
In 2016 Brazil saw this organic growth in dispute reolution in response to large scale disasters put on a formal footing. Its Mediation Law came into force together with an amendment to National Judicial Policy to regulate the recognition of certain training institutions for judicial mediators. Its new Code of Civil Procedure came into force in March 2016 and included provision for cases where consensual dispute resolution could be used. The ADR activists on the ground had demonstrated what could be achieved in response to a huge quantity of claims arising from national and international incidents.
While the civil courts in England and Wales continue to be stretched and the use of ADR is encouraged but not compelled, the message from Brazil would appear to be Deeds not Words! And in each individual mediation or collective action, the Brazil experience demonstrates that systems can be adapted to meet the needs of the parties.