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In Portugal the alternative means available for resolving disputes are conciliation mediation, and arbitration. These are all directed towards the resolving of disputes through non-judicial routes.
Resorting to such routes enables justice to be done quickly and effectively. The involvement of the parties favours the creation of conditions which enable them to maintain relationships after the disagreement has been settled.
Conciliation is an alternative to Court involvement. It is informal in nature. Under this process the parties, with or without the involvement of a third party, try to find a solution to their disagreement.
When a third party intervenes it works together with the other parties, inviting them to discuss the matter on which they disagree and helping them reach a voluntary agreement.
The conciliator draws attention to the objective aspects of the dispute, presses for a rapid, non-exhaustive solution to the matter and helps the parties in dispute to reach an agreement under their own responsibility. In comparison with a mediator the conciliator takes a more active stance. He may even propose a solution to the dispute.
Mediation is an alternative means of resolving disputes which is confidential and voluntary in nature. The responsibility for coming up with the decisions to be taken resides with the parties involved. In general, mediation is formal in nature.
In this type of resolution process, the parties in dispute, helped by an impartial and neutral third party, try to reach an agreement settling their dispute.
Unlike a judge or an arbitrator, the mediator does not make any decision regarding the result of the argument. Instead, the mediator guides the parties establishing contacts between them and enabling the exchange of points of view, in such a way that the parties themselves can come up with the basis for an agreement ending the dispute. As this process always involves a third party we can consider this to be an intermediate process between conciliation and arbitration.
As mediation allows the relationship between the parties in dispute to be maintained, it is particularly suitable for settling disputes between family and neighbours.
Voluntary arbitration is a private method of settling disputes in which the parties, on their own initiative, choose people known as arbitrators, who come up with a decision which is binding on the parties in settling their differences.
In this process, the impartial third party makes a decision regarding the dispute dividing the parties. It is equivalent to litigation since the decision is not taken by the parties in dispute.
For enforcement purposes, arbitration decisions are considered to be equal to those taken by normal courts and are enforceable by them.
Unless the parties have renounced their right of appeal or have authorised the arbitrator to reach an impartial and fair judgement, an appeal can be made against arbitration decisions to the Court of Appeal.
This is the term given to voluntary arbitration carried out by entities authorised by the Ministry of Justice to engage in such an activity. These entities are named “Centros de Arbitração” (Arbitration Centres).
In accordance with the Voluntary Arbitration Law, any dispute which does not have to be settled in court or by compulsory arbitration and which does not concern inalienable rights can be submitted by the parties to arbitration.
In Portuguese law inalienable rights include those considered to be related to matters of individual freedom and personal status, rights regarding labour relations in the context of employment contracts and rights recognised by social security law. They also include those rights connected with legal relationships which the parties cannot alienate of their own will and which they cannot, therefore, waive by means of a legal transaction.
Should such rights be invoked, use cannot be made of arbitration or other alternative means of settling disputes.
Conciliation is generally attempted before resorting to arbitration under the auspices of the institutionalised Arbitration Centres.
If the attempted conciliation does not produce a settlement for the dispute, either of the parties can submit the matter to arbitration. Mediation is not regulated by law in a general manner but is specifically envisaged in the legislation which created the “Julgados de Paz” (Magistrates’ Courts) (bodies similar to courts which have the task of settling civil cases involving amounts not more than € 3 740.98) and in the Act on the protection of minors, namely with respect to custody arrangements.
Mediation, as an alternative means for settling consumer disputes, is envisaged in the instrument creating the registration system for entities which seek to set up procedures for the extra-judicial settlement of disputes.
Voluntary arbitration can be resorted to for settling any type of dispute which by law does not need to be submitted to the consideration of a court of law or arbitration court and which involves rights or matters which the parties can freely decide on. The use of mediation is also a process which is freely determined by the parties in dispute.
The use of mediation by the entities authorised to carry out this type of procedure to settle consumer disputes depends on the prior acceptance of this process by the consumer and the professional party involved.
In custody proceedings a judge can decide that mediation should be used, but this decision must always be accepted by the interested parties.
In civil cases involving amounts of less than €3 740.98 falling within the jurisdiction of the Magistrates’ Courts, recourse to mediation is voluntary and depends on the acceptance of the interested parties.
The Magistrates’ Courts have jurisdiction in the civil area over the following matters:
Arbitration judgment is sometimes imposed by special law. In such cases the necessary arbitration court is resorted to.
Voluntary arbitration is expressly regulated by law. There is a specific act which regulates voluntary arbitration procedures carried out by institutions.
With regard to consumer disputes, mediation services can be provided by those entities which, through the voluntary registration system for extra-judicial resolution of consumer disputes, act in accordance with the principles laid down by law.
The act regulating the competence, organisation and functioning of the Magistrates’ Courts expressly provides for and regulates mediation, the functions of the mediator and the functioning of the mediation services created within each Magistrates’ Court.
Mediation in family disputes is restricted to situations of separation or divorce by mutual consent and is aimed at helping the parents of minors reach agreement on custody arrangements.
Likewise, in custody proceedings, the law requires the judge, acting ex officio, with the agreement of the interested parties, or at their request, to decide on the involvement of public or private mediation services.
The “Gabinete de Mediação Familiar” (Family Mediation Office) provides a public service in this area.
Yes, such clauses may indeed exist.
In accordance with the Voluntary Arbitration Act, any dispute which is not submitted exclusively to a court of law or to compulsory arbitration, and which does not involve inalienable rights, can be submitted by the parties to arbitration.
Parties to a business agreement can agree that disputes arising from a legal contractual relationship be submitted to a court of arbitration, with the right to resort to any other one being renounced, through a clause inserted in the contract. This clause is called a “cláusula compromissória” (commitment clause). It should be noted that if the contracting parties have not renounced resorting to the judicial route, an appeal can be lodged in the court of second instance against the arbitration decision. This clause must specify the legal relationship of the disputing parties and must be binding on the parties.
Likewise, there is nothing to prevent the contracting parties agreeing to resort to other types of ADR, in particular mediation, to settle any disputes arising from the contractual relationship.
Any kind of dispute can be settled by these types of ADR as long as, as previously mentioned, inalienable rights are not involved.
As has been shown, all disputes resulting from a legal relationship which the parties can terminate through negotiation, even renouncing the rights arising from their agreement, and which are not reserved by law solely to the law courts, can be settled by these types of ADR.
The law expressly envisages voluntary, ad hoc or institutional arbitration as a non-judicial way of settling these disputes.
The main characteristic of voluntary institutional arbitration is the fact that the Centres which carry out such work are located in several towns and cities throughout Portugal. The Centres are permanent and pre-date the disputes which they may settle. These Centres can have general competence or might be specialised in certain areas.
There are some Centres which have regional jurisdiction and are only involved in disputes occurring in a certain geographical area. There are others which cover the whole country and can deal with disputes from all over Portugal.
In addition to the Arbitration Centres which have general jurisdiction, there are several Arbitration Centres which deal with specific sectors. These include consumer disputes involving the commercial and industrial sectors, disputes arising from public and private works, disputes involving intellectual property rights, disputes concerning property and urban leases, professions and automobile accidents.
As previously mentioned, mediation is expressly envisaged in Portuguese law for civil cases involving amounts of not more than €3 740.98 and which fall within the jurisdiction of the Magistrates’ Courts.
When dealing with divorces or separations, mediation can be resorted to for settling issues related to minors. Mediation is expressly provided for in Portuguese law in the context of custody proceedings .
The mediation carried out for matters within the jurisdiction of the Magistrates’ Courts and family mediation guarantee the parties impartiality, independence, confidentiality and credibility. The mediators must act with necessary competence and diligence. These ethical rules, expressly laid down by law, function as genuine procedural guarantees.
Of these, the law puts special emphasis on guaranteeing confidentiality.
In the mediation carried out by the Magistrates' Courts and in family mediation, the parties must sign, in advance, a mediation agreement which states that the mediation in question is confidential. The parties, their representatives and the mediator must respect the confidential nature of all statements made during the mediation.
Unless the parties have given their express permission, the mediators cannot become involved in any way in any procedures occurring subsequent to the mediation, such as arbitration, legal process or psychotherapy treatment, whether or not an agreement has been reached through such mediation.
In consumer disputes, the entities which are authorised to engage in ADR procedures must provide guarantees that their work will be impartial and independent.
It is not necessary for parties to appoint lawyers when attempting to settle a dispute through mediation.
In mediation, the parties are called upon to become actively involved in seeking a solution. However, the role of lawyers in providing assistance to the parties should not be underestimated. The lawyer can ensure that the process unfolds in such a way that the interests and objectives of his client are respected; he can identify points of law, assess the desirability of a settlement or the value of a settlement to the opposing party, and can prepare or check the text of the agreement.
For mediation cases heard at the Magistrates’ Courts or in family mediation cases, the parties must appear in person. They can, however, be accompanied by a lawyer.
It is not necessary for a lawyer to be appointed when settling disputes by arbitration. The parties can designate anyone to represent them or to be present at the arbitration court.
However, a legal representative must be appointed in an arbitration case when the amount in dispute exceeds the limit laid down for the court of first instance (€3 740.98) and when an appeal is lodged.
Since the main objective of mediation is to give the parties an opportunity of settling their differences in an amicable, negotiated way, it is assumed that the parties are physically present during the mediation sessions.
Under the Magistrates’ Courts Act, if one of the parties does not appear at the scheduled mediation session and does not present any justification for this absence, the case is forwarded to the secretariat for a date to be set for a Court hearing.
The parents must be present for a family mediation process.
If either of the parents does not appear and if custody proceedings have been suspended with a view to seeking an agreement, the mediation services will inform the court thereof so that the suspension can be lifted and the court proceedings can continue.
In voluntary institutional arbitration the parties must always be heard, orally or in writing, before the final decision is taken.
In the arbitration process, given its nature, electronic means can be used, principally video-conferencing.
The law does not provide for the grant of legal aid for disputes which are resolved by voluntary, ad hoc or institutional arbitration.
Institutional arbitration by the consumer Arbitration Centres is free but the amounts of the disputes which these can help to settle are low - most of the Centres only accept claims of not more than €3 749.98.
Arbitration Centre costs vary and depend, in general, on the value of the disputes. The amounts payable and the manner in which these are distributed between the parties involved in the dispute are normally stated in the Centres’ regulations.
There are some Arbitration Centres in which charges are only due in those cases taken to arbitration courts. The mediation and conciliation services provided with a view to obtaining an agreement prior to initiating arbitration proceedings are free.
Mediation at the Magistrates’ Courts is subject to the payment of a small fixed amount which is lower if an agreement is reached. This amount to be paid is shared equally between the parties.
The Magistrates’ Courts Act provides that people who fulfil the conditions of the Legal Aid Act qualify for any of the various types of this aid (in this regard see the factsheet on legal aid).
Mediation by the public family mediation services - Family Mediation Office - is free.
If the parties do not reach a settlement or reach only a partial settlement in mediation by the Magistrates’ Courts, the mediator communicates this fact to the magistrate who schedules a date for a Court hearing.
If the parents do not reach an agreement in family mediation in the context of custody proceedings, the mediation services communicate this fact to the judge responsible for the case, which then follows its course.
For proceedings for divorce or separation by mutual consent brought in a civil registry office, if the custody agreement presented by the parents is considered by the Public Prosecutor not to take due care of the interests of the minor and the requesting parties do not agree with the alterations indicated, the case is sent to the courts of the district of the civil registry office in question.
In voluntary arbitration, the process ends with an arbitration decision which may consist in the ratification of the agreement reached during the conciliation phase. This decision carries the weight of a court judgment.
If the parties have not renounced their right to appeal, an appeal can be lodged against the arbitration decision in the court of second instance under identical conditions to those applicable to decisions made by district courts.
Recourse to ADR does not influence the deadlines for referral to a court.
The agreement reached by mediation in cases falling within the jurisdiction of the Magistrates’ Courts is put in writing and ratified by the Magistrate.
The ratified agreement has the status of a decision made by a court of first instance.
The enforcement of a ratified mediation agreement is a matter for the court of first instance, under the conditions laid down in the Civil Procedures Act.
The agreement reached by mediation is put in writing and ratified by the judge of the court in which the custody proceedings are being heard.
The arbitration decision is enforceable in the same way as a decision by a court of first instance.
The enforcement of the arbitration decision is a matter for the court of first instance, under the conditions laid down in the Civil Procedures Act.
In these situations, therefore, the matter is referred to the court at the enforcement stage.
Last update: 20-07-2007