Paula Costa e Silva: "Mediation in Portugal now begins a very virtuous path"

Leaders League: As both a professor and practicing arbitrator, how are you preparing the next generation of arbitrators?

Paula Costa e Silva: There are two essential stages for preparing the next generation of arbitrations. On the one hand, the role of universities is determinant, as they have, in recent years, devoted their academic programmes to teaching domestic and international arbitration, as well as arbitration in specific sectors. We first notice the increasing interest in arbitration among undergraduate students. Preparation of new generations has found a sound platform in universities, which rely on their staff, as well as on the constant presence of recognized practitioners for the teaching of arbitration throughout all academic degrees in a way I find extremely pertinent.

The presence of arbitration in academic programmes has also contributed decisively to the publication of in-depth studies of a field that, in respects to jurisdictional activity, is still in its youth. On the other hand, the participation of younger arbitrators stimulates reciprocal learning and allows for the creation of a shared culture.

Portugal is beginning to see new arbitrators in the market, more than in previous years. What do you think is the contributing factor?

The rise of a new and highly qualified generation of arbitrators results from two determinant factors. Firstly, the contact, in an academic context – for instance, at conferences and post-graduate programs – with arbitrators that address their audiences as such. Secondly, the growing interest of several teaching institutions in organizing such events.

But perhaps the answer to this question is more deeply rooted in the nature of jurists. Law is a pragmatic art. Whichever the jurist’s function, they always bring their skills to bear on a certain case. It is only natural that arbitration exerts a centripetal force on the new generation of arbitrators, as it represents the possibility of determining the legal solution for an actual case.

Is arbitration still the choice among clients for dispute resolution? Do you see much mediation taking place in Portugal?

The first question is hard to answer. In fact, there are no empirical and public data on the matter, which means we cannot accurately assess if arbitration is a choice for dispute resolution. However, institutional arbitrations are becoming more and more frequent. At the same time, a certain crossover is beginning to make the parties feel surrounded by sounder safeguard mechanisms: arbitration agreements are becoming more complex and include other procedural agreements.

Mediation, which curiously was provided in civil procedure law for many years as an admissibility condition for access to the courts (in cases that should have been regulated but never were), now begins a path that I believe to be very virtuous. It allows for the self-composition by the parties, resulting in a solution that they understand to be the best to put their conflict to an end. It can also expand towards many and unsuspected fields, such as criminal mediation, and promote the pacification of a conflict rather than resolving a dispute.

What are the future trends of legal education?

As I stated before, law is a pragmatic art that necessarily aims at solving problems from a solid methodology and profound knowledge of the juridical system. These are the two pillars from which we can never depart.

However, if I were to compare the time when I first started studying law and the present moment, I would say there has been a fundamental change. Contacts between jurists of different legal backgrounds and geographic spaces have strengthened. It has become easier to access different cultures, which blurred borders and led to the realization that foreign law does not pose as a worst solution, but a result of cultural evolution. Law is culture. The falling of borders deepened the understanding of law as a cultural language: it is not necessarily identical across different spaces, but it is certainly equivalent to the art of giving each their own.