Acesso à justiça e mediação: ponderações sobre os obstáculos à efetivação de uma via alternativa de solução de conflitos

Abstract

This thesis sets out to verify whether obstacles of informative-educational nature – represented by the need for information of Brazilians about mediation –, political-legislative nature – sustained by the inexistence of disciplinary law related to its practice in Brazil – and juridical-cultural nature – motivated by the rulings of the culture of litigation upon peace consensus in conflicts – may be regarded as blocking factors for the fulfillment of the mediation as an alternative way of facilitation for the fundamental right to access to justice in Brazil. It is guided by an inductive dialectic perspective and by the use of bibliographical and document research techniques. The thesis is structured in four chapters. In chapter 1, it evaluates the implications of the dynamic interactive-social processes for the evolution of Law and the influence projected by it on social phenomena; the historical-evolutionary process of solution of conflicts through the practices of self-tutelage, settlement and resolution by an intervening third party; as well as the reasons for which the law process remains as the main via of access to justice in Brazil. In the second chapter, it sustains the possibility of fulfillment of the fundamental right to access to justice through alternative ways to the process. In order to do so, the study develops a consensual or co-existential conception of justice and is guided by the broad sense of access to justice. It also discusses the revolutionary character of the universal movement of access. This part considers the administrative crisis of justice as an irrefutable fact, pointing out to the phenomena of de-formalization of processes and controversies as usual tendencies. In the third chapter, it details the mediation through the development of considerations on the historical and conceptual processes about this evolving practice, its informative principles, validity requirements and scopes. In sequence, it draws the contours of present-day practice in international mediation, highlighting the scenario in Argentina. In the last chapter, it establishes the panorama of the Brazilian practice of mediation, revealing the reasons for its timid increase; it deals with the knowledge of the causes and effects of the three obstacles in question and formulates proposals for the solutions of such situations. In the end, it concludes that the overcoming of such obstacles presupposes a National Mediation Plan, executed in view of the articulation of the following propositions: the intensification of measures in order to minimize the lack information about the scopes and advantages of mediations; the normalization of the judicial and extra-judicial practice as well as the consequent breach with the culture of litigation, so deeply rooted in the Brazilians.