DEFINITION
There are situations in which, no matter how strong your case is, getting involved in litigation or arbitration is simply not a worthy plan A strategy, in view of all the interests at stake. On such cases, parties may feel that the use of a conventional strategy of dealing with the problem might lead to inexorable court battle.
If the parties would like to be sure that they have done everything within their reach to resolve the dispute amicably, before trying more costly methods, the use of a good mediator is an excellent idea. International research and fast-growing practice points to unquestionable benefits and cutting of costs in using mediation. Even in seemingly intractable cases, as experience demonstrates, there is plenty of room for mediators to help. By shaping a process and using specific techniques and interventions, mediators achieve surprising statistics in settling disputes. Those difficult cases are our favorites.
OUR APPROACH
The market for business mediation is still unformed in Brazil. When you say you hired a mediator, you do not mean much. There are many different styles of mediation. Not all of them are suited to a business problem, although a high number of providers are still not conscious of this fact. Actually, very few mediators work full or even substantial time in this role. Most share their focus with other overbearing activities.
Faleck & Associados has a solid practice and over 10,000 hours of exclusive and intense dedication to consensual dispute resolution. We follow the best international mediation practices and adapt to the Brazilian legal and business culture on national cases. We know well the markets in which we operate. We analyze the circumstances of the case and the profile of the parties to design a suitable process to achieve the expected results.
Our business mediations have their effectiveness and quality tested and recognized by several of the largest national and international companies doing business in Brazil, as well as renowned law firms and reputed publications. On a market filled with uncertainty in terms of mediation providers, we bring certainty of high quality work and an unmatched track record of successful cases.
APPOINTING A MEDIATOR
The choice of the mediator is often made in agreement with the opposing party. Best practices indicate that the parties, in the early stages of the dispute, should jointly seek acceptable names to both sides, and interview the potential candidates. In order to play its role as a neutral and impartial third party, we believe that a mediator should not be equally distant from the parties, but equally close. Thus, we dedicate to the development of professional relationship and reputation with a broad spectrum of players in the market, including companies, institutions, organizations and law firms, for greater effectiveness in our services.
DEFINITION
Every institution, organization or environment at large has an existing dispute resolution system, that may vary according to different shades of formality, thoughtfulness, effectiveness and efficiency.
These systems may have been intentionally designed or simply inherited from past administration without further thought. They often imply acting at already distressed stages of disputes, following blindly and repetitively the established protocols and procedures for late and isolated negotiation and litigation. Some systems are simply not ready to deal with the evolving complexities organizations face and other systems do not operate as they were intended to.
As a response, the service of dispute systems design (DSD) can be defined as the intentional organization of resources and procedures, which interact with each other, to prevent, manage, deescalate and resolve disputes. DSD projects begin with the diagnose of a specific context and continue with the thoughtful design and implementation of a tailor-made strategy, shaped to meet the objectives and capable of delivering better results to the parties involved.
The main existing contexts in which DSD is applied worldwide include claims resolution facilities and compensation programs stemming from tragedies, business to business and business to consumers initiatives, early case assessment and resolution procedures for corporations and organizations, organized settlement programs, online dispute resolution schemes, community, government and trans-jurisdictional initiatives and integrated conflict management systems in workplaces and other organizational settings.
OUR WORK
We have been helping companies and organizations with innovative ideas in a number of complex contexts regarding dispute management and resolution. These initiatives include strategies for settling public repercussion or sensitive repetitive cases, establishing legitimate claims resolution facilities in the context of airline and major environmental tragedies, implementing negotiation programs with a higher degree of procedural justice for companies and organizations (opportunity for voice, careful treatment of parties, empathy, dealing with emotions and challenging situations), settlement counsel programs to deal with large litigation dockets, and building government supervised regulatory consumer protection negotiation and mediation schemes. Our work comprises all the stages of the design of a dispute resolution system, which may include:
- Diagnosing the context (and the system in place)
- Assistance in setting goals and purposes of the initiative
- Mapping stakeholders and defining strategy of approach (interests, no deals, resources and capabilities, options)
- Mapping the types disputes and challenges involved
- Search for relevant objective criteria (justice, market practice, social proof)
- Approaching stakeholders, meeting facilitation and consensus building
- Defining and shaping basic processes and procedural mechanisms to be applied (negotiation, mediation, early evaluation, advisory arbitrations and so forth)
- Support for drafting legal vehicles (forms, communication materials, settlement and release terms)
- Hiring, training and motivating of staff
- Dissemination of the initiative
- Implementation and use of technology
- Evaluation
We are perhaps one of the very few firms in the World that is highly specialized and active in dispute systems design. We are pioneers in DSD and brought upon ourselves the mission to introduce and disseminate the field of practice in the country. We have been working in major cases in Brazil and important public cases in Latin America. Our founding partner authored seminal articles and books on the subject in the country and is a professor of DSD in a leading North American university in the dispute resolution field.
OUR PRINCIPLES: REPUTATION AND TRUST
We are often engaged as negotiators to represent companies which are willing to do what is right, and committed to resolving disputes with fairness and rationality, according to objective criteria and market standards. We rely on our credibility and goodwill in the market for greater effectiveness in resolving disputes.
We believe trust is a key factor in resolving difficult disputes, especially those with a narrow zone of possible agreement. In our view, to be effective and efficient, not only should we be highly specialized in consensual dispute resolution, but also, we should carefully cultivate our reputation in the market for competence, honesty and warmth. This enable us to approach opposing parties, improve the quality of information exchange, maximize results and prevent litigation even in seemingly intractable cases.
NEGOTIATION TO PREVENT AND RESOLVE DISPUTES
Faleck & Associados represents clients in negotiations both to prevent and to resolve disputes. We work together with high–management, in-house legal departments and external legal teams to set up negotiation strategies and represent companies in complex cases, both national and international, including cases involving the public sector or multiple parties.
At times, opposing parties are hesitant to engage in a mediation process. In such cases, we have been retained as negotiators, openly representing one side of the dispute. Notwithstanding, we have been using the best “empathic” negotiation techniques and have been successful in engaging opposing parties in principled problem-solving processes and achieving acceptable settlement results.
Our work may include the following steps:
- Diagnosing each parties’ interests, resources, capabilities, options, no-deals and alternatives
- Mapping junctures, costs and risks (decision tree design)
- Supporting the process of quantifying goals and objectives
- Establishing objective criteria and standards to be applied
- Assisting in information exchange (strategic sharing and gathering)
- Designing persuasive framings for themes and proposals (tone and content)
- Preparing, rehearsing and simulating meetings
- Mapping stakeholders and conducting multiparty negotiations
- Identifying tactical and personal barriers and devising strategies to overcome them
- Conducting meetings and developing mutually acceptable options for settlement with the other side
- Establishing “save faces”, “victory speeches” and other necessary features that allow for settlement
- Assistance in closing and formalizing the agreement
SETTLEMENT COUNSEL PROGRAMS FOR COMPANIES
We have been successfully structuring Settlement Counsel Programs for companies with large litigation dockets. These projects target a part of a company’s litigation docket and comprise assessing strategy, reassessing company’s exposure and approximating counterparties to negotiate efficient and fair settlements. We offer assistance at every step of the process, which may include:
- Understanding the facts of the cases
- Interaction with in-house and external legal teams
- Supporting the process of quantifying risk and exposure
- Definition of negotiation strategy
- Organization of information for management and workflow
- Monitoring and managing the inventory of lawsuits
- Using windows of opportunity to close cases
- Conducting meetings
- Closing agreements
- Sending periodic reports
We have achieved very positive results in reducing company’s litigation dockets and exposure, saving direct and indirect costs and increasing company’s capacity to settle a high number of cases efficiently, without adding costs with staff and trainings.
DEAL COUNSEL
Although our main focus is dispute resolution, we also represent clients in deal negotiations, applying our expertise in structuring negotiation processes to support businesses, both at the drawing board or at negotiation tables.
Using a similar approach from our dispute resolution practice, we develop and implement sophisticated strategies, suited for each case. For example, we advise clients in the following steps:
- Diagnosing each parties’ interests, resources, capabilities, options and alternatives
- Mapping junctures, costs and risks (decision tree design)
- Supporting the process of quantifying goals and objectives
- Establishing objective criteria and standards to be applied
- Assisting in information exchange (strategic sharing and gathering)
- Designing persuasive framings for themes and proposals (tone and content)
- Preparing, rehearsing and simulating meetings
- Mapping stakeholders and conducting multiparty negotiations
- Identifying tactic and personal barriers and devising strategies to overcome them
- Conducting meetings and developing mutually acceptable options for deals with the other side
- Assistance in closing and formalizing the agreement
PROBLEM-SOLVING NEGOTIATION (HARVARD THEORY)
Our training program is based on the solid Harvard problem-solving negotiation theory and our own practical experience in settling over R$10 billion worth in complex disputes.
The goal of the training program is to familiarize participants with the best theoretical framework available in negotiation, and offer a safe environment for discussions, testing and development of tactics, strategies and skills, to improve their performances at negotiation tables. The training program includes readings, discussions, simulation exercises (acquired from Harvard’s Program on Negotiation) and individual feedback. We have three different training packages: 8 hours, 16 hours or 20 hours.
We have been delivering annual trainings for lawyers and executives, in-house trainings for companies in various sectors and government offices such as the Public Prosecutors’ Office of the State of São Paulo, the Public Defenders’ Office of the State of São Paulo, the Federal Attorney General’s Office and the Attorney General’s Office of the State of Rio Grande do Sul.
TAILOR-MADE PROGRAMS FOR CLIENT'S SPECIFIC NEEDS
We are capable of designing specific training programs on the various aspects of dispute resolution, on topics regarding negotiation, multiparty negotiation, dealing with difficult or special situations, decision analysis and game-theory, mediation, consensus building, meeting facilitation and dispute system design, according to the client‘s needs or interests.
We also provide training, monitoring and quality-control strategies to in-house teams from organizations, companies or law-firms in charge of repetitive negotiations, dealing with the general public and sensitive situations, in order to implement a higher degree of procedural justice to such processes, and improve the use of empathy, careful treatment, voice, dealing with emotions, difficult situations and so forth.
