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IT Arbitration and Mediation

Resolving technology disputes with confidentiality, speed and a technically informed decision: mediation recognised by the CNJ, the Brazilian National Council of Justice, and expert technical support in arbitral institutions, in a hybrid profile that unites technical command and procedural experience.

The context

Why technology disputes call for a different forum

A dispute over a failed system implementation usually takes years in the courts: an appointed expert, questions to the expert, clarifications, appeals. Meanwhile the project stays frozen, the contract keeps bleeding and the commercial relationship dies. Arbitration, governed by Law 9,307/1996 (the Brazilian Arbitration Act), allows the parties to take that dispute to a decision-maker of their own choosing, in a faster and confidential proceeding, administered by Brazilian and international arbitral institutions.

An arbitral award has the same force as a court judgment: it constitutes an enforceable instrument and is not subject to appeal on the merits. What the parties give up in appellate review, they gain in speed and in the technical quality of the decision.

Mediation follows a different logic: an impartial third party facilitates the negotiation so that the parties themselves build the settlement. It is governed by Law 13,140/2015 (the Brazilian Mediation Act) and by the Code of Civil Procedure, and it tends to be the more rational route when the commercial relationship deserves to be preserved, as between a client and a software supplier in the middle of a project.

On both routes, IT disputes carry one particularity: the merits are technical. Logs, acceptance records, requirements, architecture, code. The quality of the outcome depends on who is able to read that evidence.

From the scales to the settlement: expert technical support in technology disputes

When it applies

The scenarios in which the out-of-court route makes sense

Arbitration covers freely disposable property rights, the natural territory of technology contracts. The typical scenarios:

The contract already contains an arbitration clause: the dispute is born destined for the arbitral institution chosen by the parties, and resisting that only delays the solution.
The contract has no clause, but both parties want a quick resolution: an arbitration agreement can be signed after the conflict arises.
The dispute is technically dense: an interrupted implementation, a system that does not perform, code of contested ownership, scenarios in which an ordinary court would depend on years of expert evidence.
Confidentiality matters: trade secrets, proprietary architecture and contract values stay out of public case files.
The commercial relationship still has value: mediation makes it possible to renegotiate the project instead of burying it in litigation.
The arbitration is already under way and technical reading is missing: acting as expert to the arbitral tribunal or as party-appointed expert for one of the parties.

The role of the technically informed decision-maker

Why the hybrid profile, technical and procedural, matters

The arbitrator decides: he conducts the proceedings, weighs the evidence and renders an award. The mediator does not decide: he creates the conditions for the parties to see the problem precisely and negotiate on facts rather than on versions. In IT disputes, both roles run into the same obstacle: the evidence is technical, and a decision-maker who does not master it becomes hostage to each party's experts and technical assistants.

That is where the hybrid profile counts. Someone who has built a career examining systems, IT contracts and failed projects as a forensic expert reads the evidence directly: he knows what a log demonstrates and what it does not, recognises an unworkable schedule, distinguishes a software defect from a failure of client-side management.

The credential behind that work is concrete: Judicial Mediator and Conciliator recognised by the Conselho Nacional de Justiça, the Brazilian National Council of Justice, having served at the CEJUSC (judicial conflict resolution centre) of the Fórum Regional VII in Itaquera, São Paulo, between 2016 and 2020. Real sessions, real parties, settlements approved by the courts: the negotiating-table practice that no course can replace.

Added to that is the forensic practice accumulated in court proceedings, on both sides of technical evidence: as court-appointed expert and as party-appointed expert. It is that procedural experience, combined with a technology background, that supports the two seats occupied here: that of mediator, with recognition issued by the CNJ, and that of expert technical support in arbitral institutions, as expert to the arbitral tribunal or as party-appointed expert. The arbitrator's seat belongs to whoever the parties choose to decide; the role here is to ensure that the decision rests on technical evidence that is well produced and well read.

Types of dispute

The IT disputes that reach the table

Implementation

System implementation

ERP, CRM and bespoke systems: a go-live that never arrives, a migration that corrupts data, endless customisation. The classic dispute between client, integrator and vendor.

SLA

Service levels

Breach of SLA in support, cloud and outsourcing contracts: what the measurements record, how they were taken and how far the contractual penalties reach.

Licensing

Software licensing

Licensing metrics, vendor audits, use beyond the contracted volume and disputes over charging models per user, processor or instance.

Projects

Software projects

Scope, acceptance and quality of bespoke software: a requirement met or not, a delivery refused with or without reason, responsibility for the delay.

Ownership

Ownership of code

Title to source code as between client and developer, use of third-party components, similarity between code bases and allegations of copying.

Support

Technical support in arbitrations

Acting as expert appointed by the arbitral tribunal or as party-appointed expert in proceedings already under way, with expert reports and technical opinions to the standard the forum demands.

The process

How each route runs, from start to outcome

In mediation

01 · InvitationOne party proposes mediation; the other's participation is voluntary

02 · PreparationTechnical reading of the conflict, of the contracts and of the deliverables in dispute

03 · SessionsConfidential meetings, joint and individual, with the technical matter translated into terms both parties understand

04 · SettlementAn instrument enforceable out of court; enforceable as a judgment once approved by the court

In arbitration

01 · CommencementRequest to the arbitral institution based on the arbitration clause or on the arbitration agreement

02 · TribunalAppointment of the sole arbitrator or of the panel, under the institution's rules and the will of the parties

03 · ProceedingsSubmissions, documents, expert evidence and hearings, in a flexible and confidential procedure

04 · AwardFinal decision on the merits, enforceable as a court judgment

The advantages

What the out-of-court route delivers

Confidentiality

The proceeding is confidential: trade secrets, system architecture and contract values do not go into public case files.

Time

Speed

Arbitral proceedings are usually resolved within months or a few years, against the far longer horizon of a court action with complex expert evidence and appellate review.

Technique

Technically informed decision

A decision-maker who reads the technical evidence directly reduces the risk of a decision detached from the reality of the project.

Form

Flexibility

The parties shape the procedure: calendar, language, rules of evidence and the extent of the technical phase.

Relationship

Preserving the relationship

Mediation makes it possible to correct the course of the project and keep the contract alive, an outcome litigation rarely offers.

Effectiveness

Enforceability

An arbitral award is enforceable as a court judgment; a mediated settlement is an enforceable instrument that may be approved by the court.

Completed cases

ANONYMISED CASE

Mediation in a dispute over an enterprise software project

Independent technical analysis identified shared responsibilities. Facilitation of a settlement with partial delivery and mutual reduction of financial expectations.

Frequently asked questions in this area

What is arbitration and what force does an arbitral award have?

It is the resolution of a dispute by an arbitrator chosen by the parties, outside the court system, under Law 9,307/1996. The arbitral award is enforceable as a court judgment, with the same force as the decision of a career judge, and it is not subject to appeal on the merits. The courts step in only for compulsory enforcement, if needed, or to review serious formal defects.

The contract has an arbitration clause. Must the dispute go to arbitration?

As a rule, yes. The arbitration clause binds the parties: if one of them files a court action on matters covered by the clause, the other may invoke the arbitration agreement and the court proceeding is likely to be dismissed without a decision on the merits. That is why the clause, the chosen institution and the procedure it provides for must be examined before any procedural move.

What if the contract has no arbitration clause?

The parties may still opt for the out-of-court route. Once the conflict has arisen, they can sign an arbitration agreement taking the dispute to an institution, or simply start a mediation, which does not depend on any contractual provision. What cannot be done is to impose arbitration on someone who has not consented: the route always rests on agreement.

What is the difference between mediation, conciliation and arbitration?

In mediation, the impartial third party facilitates the dialogue so that the parties themselves build the solution, without proposing or deciding. In conciliation, the third party may suggest settlement proposals. In arbitration, the arbitrator decides, and the decision binds. Mediation and conciliation keep control of the outcome with the parties; arbitration transfers it to the decision-maker, in exchange for a final answer.

Is arbitration not too expensive for mid-sized contracts?

Institutional costs and arbitrator fees do exist and must be factored in. The correct comparison, however, is with the total cost of court litigation: years of proceedings, complex expert evidence, appellate review and the value of the contract frozen throughout that period. For smaller disputes, institutions offer expedited procedures, and mediation is usually the most cost-effective route, resolving in a few sessions what litigation would drag out for years.

Does the arbitrator have to be a lawyer?

No. Law 9,307/1996 allows the parties to appoint as arbitrator any person with legal capacity in whom they place their trust. In technology disputes, that freedom is strategic: an arbitrator who masters the technical subject matter reads the evidence directly, without depending on full translation by experts. In three-member panels, it is common to combine legal and technical profiles.

Can an arbitral award be reviewed by the courts?

On the merits, no: the arbitrator's decision on who is right is final. The courts may only set the award aside in the narrow, formal circumstances laid down in Law 9,307/1996, such as the absence of a valid arbitration agreement or breach of the right to be heard, in an action with its own time limit. It is a route for reviewing validity, not an appellate instance.

The arbitration is already under way. What technical support is available?

Two fronts: acting as expert appointed by the arbitral tribunal, producing the report that will inform the decision, or as party-appointed expert, drafting questions to the expert, following the expert examination, preparing technical opinions and translating the technical subject matter into the lawyers' strategy. The rigour of the work is the same as in court-appointed expert examination: documented method and conclusions supported by evidence.

The level of work you are engaging

Before deciding, it is worth seeing what has already come through this laboratory: cases described without identifying the parties, in the format of challenge, method and result.

Highly complex

An attack with its command hidden inside a blockchain

The intruder's control channel was written into smart contracts. The examination decoded what he had deleted and handed the authorities concrete routes to identification.

See the case Negative proof

Thirteen devices, eight suspects and one innocent person

The official examination had concluded that he took part. The re-examination showed the links were false positives, and the accused person was cleared.