From the 2nd Brazilian Mediation Day
THE AUTHOR:
Nathalia Fasolo, Master’s Candidate at Université Paris-Panthéon-Assas
On 6 February 2025, the Comparative Law Institute of Panthéon-Assas University hosted the 2nd Brazilian Mediation Day (“BMD“), organized in collaboration with the International Mediation Institute (“IMI”). Founded by Brazilian lawyers and mediators Rissiane Goulart and Marina Gouveia, the BMD was launched in 2024 and, in its second edition, has already tripled in size. This report provides an overview of the main discussions and insights shared during the conference.
Marie-Élodie Ancel (Professor, Panthéon-Assas University) inaugurated the event on behalf of the host institution, reaffirming Panthéon-Assas University’s commitment to fostering mediation through various programs, notably the Master’s in Comparative Business Law, which she directs. In her initial remarks, Ms. Ancel introduced Catherine Kessedjian (Emeritus Professor, Panthéon-Assas University), who delivered the keynote address.
Ms. Kessedjian explored the different layers of complexity in international mediation, from general cultural differences to divergent legal concepts and language barriers. Further, she addressed the evolving role of Artificial Intelligence (“AI”) in mediation, raising concerns about cognitive, linguistic, age, and gender biases in algorithms. She concluded by stressing the need for political recognition of mediation and specialized training to reinforce it as a structured profession in contemporary dispute resolution.
Tech and Tact – AI’s Role in Modern Mediation
The first part of the conference began with a survey conducted by the panel’s moderator, Célina Guichenduc (Lawyer and Mediator, Lutran Avocats & Médiation). She asked the audience whether they used AI in their professional and personal lives, to which most, in a filled auditorium, raised their hands. However, when the question shifted to how many would be comfortable with AI assisting in their mediation process, only a few people signaled their agreement.
The panel discussion, dedicated to the role of AI in mediation, then began with a foundational question posed by Ms. Guichenduc regarding the definition of AI. Stephen Walker (Founder, Swalkermediation) humorously remarked: “AI is the thing that’s going to help us with our natural stupidity, isn’t it? Or maybe not”.
Mr. Walker explained that, in broad terms, AI in mediation is capable of analyzing data, translating languages, and making recommendations. However, the central focus of the discussion was on generative AI (“Gen AI”). While Gen AI is now widely used in everyday life, its application in mediation remains relatively limited. The panel focused on how Gen AI could enhance the mediation process from three key perspectives: that of the client, the client’s lawyer, and the mediator.
Mr. Walker believes that Gen AI is well-suited for large, document-heavy cases and disputes with singular issues. He highlighted innovations in the United Kingdom, such as the Habermas Machine, which synthesizes opposing views to reach consensus. While Gen AI enhances efficiency, ethical concerns persist, particularly regarding fact-checking and discourse moderation. He suggested that the future of mediation may depend on how Gen AI integrates into current practices, with its implementation potentially being more seamless in online mediation than in face-to-face settings.
Filippo Zuti Giachetti (International Dispute Counsel, MDisputes) highlighted the potential applications of Gen AI in mediation. As part of a working group within the International Bar Association Mediation Committee, which aims to establish guidelines for the use of Gen AI in mediation, he and 21 other members explore how AI could benefit various users in the mediation process, increasing access to justice, enhancing efficiency, and reducing costs.
Giulio Palermo (Partner, Archipel) contrasted Gen AI’s impact on arbitration and mediation, arguing that Gen AI has a greater influence in arbitration, where proving who is right is central. Mediation, in contrast, focuses on legal risk assessment and broader discussions. While Gen AI’s impact on institutions managing both arbitration and mediation cases may be similar, its role in arbitration is more pronounced due to the nature of the process.
Consensual Conflict Resolution – The Funding Factor
The second panel, moderated by Magdalena Bulit Goñi (Tribunal Secretary, Freelance), prompted the speakers to address key issues surrounding Third-Party Funding (“TPF”) in mediation, including its impact on negotiations, confidentiality, the need for regulation, and enforcement of settlement agreements.
Fernando Perez Lozada (Senior Investment Manager, Qanlex) discussed how TPF can validate the strength of a claim, influence adjudicators and defendants, and potentially increase the likelihood of a settlement. Depending on the terms of the funding agreement, funders may play an active role in settlement negotiations or remain passive. Ultimately, Mr. Lozada considers that mediation is beneficial for all parties, including funders, as it reduces both time and costs in comparison to prolonged litigation.
Ana Gerdau de Borja Mercereau (Senior Associate, Citadelle Disputes) stressed the need for regulation and transparency in TPF. A central issue raised was whether there are regulations that govern TPF. It was noted that while some frameworks exist, a broader, more harmonized regulatory approach could be beneficial to ensure clarity for both parties and funders.
Alexander Leventhal (Partner, Quinn Emanuel Urquhart & Sullivan) explored TPF’s influence on settlement dynamics, confidentiality, and enforcement. Funders, with a direct stake in the outcome, help reduce costs and influence negotiations. However, they should be bound by confidentiality agreements to ensure mediation discussions are not used against parties in later proceedings. Typically, funders are not signatories to settlement agreements, as Mr. Leventhal pointed out, though in some cases disputing parties might assign their rights under a settlement agreement to a TPF, enabling the TPF to enforce it directly.
From Argument to Agreement – Building Better Outcomes in Legal Practice
The third panel was moderated by Katia Martins Ramos (Partner, Martins Ramos Advogados), and discussed the potential of mediation in resolving complex disputes. Ricardo Loretti (Partner, Bermudes Advogados) addressed the challenge of persuading clients to mediate early in a dispute due to information asymmetry and litigation uncertainty. He noted that risk assessments and cost analyses often delay mediation. While not a universal solution, Mr. Loretti emphasized that mediation can be a powerful tool for efficient and cost-effective dispute resolution. He shared an example of a high-profile public infrastructure dispute where mediation within a 90-day framework led to a partial agreement. The mediation process encouraged creative solutions, such as involving a third-party investor in settlement negotiations, demonstrating mediation’s flexibility in fostering resolutions not achievable through litigation or arbitration.
Jean-Christophe Barth-Coullaré (Executive Director, World Association of PPP Units & Professionals) expanded on the discussion by highlighting the hidden costs associated with arbitration disputes in large infrastructure projects. He emphasized the need for more collaborative contracts in infrastructure projects, and advocated for anticipatory mediation and flexible contract frameworks, noting that clear governance structures, transparent decision-making, and shared long-term visions can enhance contract resilience. Ultimately, fostering collaboration from the outset can mitigate conflicts and create more adaptive and sustainable contractual relationships.
Natascha Tunkel (Partner, KNOETZL) discussed the importance of robust settlement agreements tailored to parties’ needs. She argued that we should move beyond standard frameworks, focusing on expectation management and partial agreements to reduce cost, risk, and uncertainty. She also emphasized the need for effective communication in technical disputes, positioning mediation as a leadership-driven process that fosters enforceable agreements.
Robust Mediation Ecosystems – What’s in the Mix?
The fourth and final panel examined the development of mediation frameworks worldwide. Catherine Davidson (Director, Catherine Davidson Mediation Services) discussed the Australian Mediator and Dispute Resolution Accreditation Standards (“AMDRAS”), which regulates mediation practices in response to growing dispute resolution diversification. AMDRAS introduces three accreditation levels—foundational, advanced, and leading mediator—with professional development requirements. Ms. Davidson noted concerns about pricing and service quality but highlighted its potential to improve mediator standards and access to justice.
Tat Lim (International Mediator, Maxwell Mediators Singapore) focused on mediation certification systems, particularly the Singapore International Mediation Institute (“SIMI”) and Singapore International Mediation Centre (“SIMC”). While certification serves as a marketing tool, Mr. Lim noted that it does not guarantee access to high-demand cases, as legal professionals prioritize trust and experience. He emphasized Singapore’s role as a global dispute resolution hub but acknowledged that certification’s long-term impact remains uncertain.
Nikki Edwards (Partner, Howard Kennedy) discussed recent changes to the Civil Procedure Rules in England and Wales, which now allow courts to compel mediation, and mentioned that the UK judiciary is exploring stronger sanctions for non-compliance, particularly in large cases.
Leonardo D’Urso (Co-Founder & CEO, ADR Center) stressed the importance of integrating mediation into public policy and legislative frameworks. Mr. D’Urso noted the European Union’s reluctance to sign the United Nations Convention on International Settlement Agreements Resulting from Mediation (2019) (“Singapore Convention on Mediation”), considering it a missed opportunity for promoting international mediation. In this context, he reinforced the crucial role of institutions like IMI, which, as he asserted, can—and will—advocate for mediation at the European Commission, the United Nations, and within national governments.
Closing Remarks
Gary Birnberg (Arbitrator and Mediator, Gary Birnberg ADR), in his closing remarks, highlighted communication as central to mediation, emphasizing cultural understanding, diversity, and protecting the vulnerable. Mediation is about fostering better communities, and “this, for me, my friends, is what we are doing here today. It’s what we’ve been doing here all this week. And I dare say, why we are all in this profession”– as he strikingly concluded.
ABOUT THE AUTHOR
Nathalia Fasolo is currently pursuing a Master’s degree in Comparative Business Law at Université Paris-Panthéon-Assas. Prior to joining the program, she was an associate at JBLEE Advogados, a law firm specializing in arbitration based in Curitiba, Brazil. She has experience as an administrative secretary for arbitral tribunals under the rules of various institutions, including the ICC, CAM-CCBC, CIESP-FIESP, CAM-B3, FGV, and ARBITAC, as well as acting as counsel in civil litigation. She is admitted to the Brazilian Bar Association.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
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