By: Vivien Lys

In the current situation of the Brazilian economy, the insurance market stands out for its growth with numbers in the billions of houses in the collection of premiuns in all branches, propitiating a society more protected in relation to exposed risks.
The insurance contract is rooted in the paradoxical movement of paralysis and risk of decline, because its legal structure still presents itself “prehistoric” in relation to its plastered and repetitive clauses, indicating the extreme urgency of a transmutation in the management of its regulation. Another sensitive aspect of this agreement may occur after the eventual denial of a liquidated claim that may present a major obstacle to its economic advances that are threatened in seconds in the filing of lawsuits without the actual analysis of risks to the insurer and the insured.
With the move to appealing denied claims, the parties only transfer the discussion to the Judiciary, without being aware that this decision may cancel the whole structure of the insurance contract. Even if there is a judicial discussion of an insurance contract by adhesion, the risks were previously known by the contractors and can not be annulled on the basis of legislation that does not protect mutualism.
As it is public knowledge, in the Brazilian judicial system there is no certainty of the final decision to be rendered by the judge. This uncertainty is aggravated by the fact that Article 47 of the Consumer Protection Code applies to the insurance contract and can empty all the negotiated content imposed on the clauses previously adjusted.
In this real scenario, it is questioned: Are the needs of players in an insurance contract safeguarded in this appeal system? Of course, the answer is no.
And under the corollary of creating greater equitable protection of the insurance contract, is that the negative response gains reflexes of greater repercussion. It is not enough to modify texts of clauses, it is necessary to restructure the management of insurance contracts from the beginning of a possible emerging conflict. The solution leads to the adoption of a new system to deal with conflicts arising from the insurance contract.
With the enactment of the Measurement Law and the entry into force of the New Code of Civil Procedure, the solution to the resolution of conflicts is expected to be ready and self-enforcing.
In this new scenario – started seven years ago – the movement of lawmakers in the joint interpretation of these two laws induces that all society – consumer and supplier – will demand that their resistance claims be solved through appropriate methods of conflict resolution. In the United States and Europe – where most insurance and insurance brokerage houses are located – mediation is a valuable tool for reducing contingencies and re-establishing a new path for the execution or conclusion of the insurance contract in the exact terms contracted by insured.
Internationally, insurers and brokerages can avail themselves of the Model Law, Model Law on International Commercial Conciliation, developed by the United Nations Commission on International Trade Law (UNCITRAL) in 2002, to elect mediation to their contracts and policies in the private business context.
We can no longer postpone this transmutation movement that the players of the insurance market need to materialize and move forward!
There is one factor contributing to this advance, which is the fact that mediation can be proposed by either party, even if there is no contractual provision for its use.
The only requirement is the adhesion of fact and of law by the other party to participate in the process of mediation through a representative of the company – if legal entity – with powers of compromise and decision, or even the individual; but both accompanied by their respective lawyers.
The introduction of post-conflict mediation is also a sign of the maturing of the insurance market from education of the insured and the insurer and / or the broker and / or the reinsurer.