. A mediação incidental como meio de solução dos conflitos trabalhistas individuais: a questão da dispensa de trabalhadores detentores da garantia provisória no emprego

Abstract

This article focuses on the practice of incidental mediation in the labor process and its potential contribution to the effective solution of conflicts which arise from the dismissal of employees with a provisional guarantee of employment. It reveals the disorderly use of incidental conciliation, being indiscriminately applied to the solution of individual conflicts, inserted within the context of labor relations, both circumstantial and continued. It seeks to answer the following research issue: can the use of incidental judicial mediation in the Labor Court contribute to the effective solution of conflicts that arise from the dismissal of the employee who has a provisional assurance of employment? It establishes the bases of the phenomenon of diffusion in the alternative methods of conflict resolution, in the context of the universal movement of access to justice. It develops considerations on particularities of conciliation and mediation, highlighting the aspects of distinction that exist between them. Finally, it evaluates the application of self-compositional methods, considering the peculiarities of the controversies that arise from the dismissal of employees with a provisional guarantee of employment. It concludes that, by targeting the in-depth exploitation of the interests at stake, the strengthening of a dialogue and of the relationship between the parties, besides the empowering of the parts involved, incidental judicial mediation would be the most appropriate way to administrate conflicts arising from the dismissal of these employees. Besides, it evidences a legislative proposition, about the issue, that has already been submitted to the Commission of Jurists in charge of the elaboration of the draft of the Arbitration and Mediation Law of the Federal Senate.