Da autocomposição adequada ao acordo justo nas ações coletivas

Abstract

The Brazilian legal system is moving towards settlements in various areas, and this trend is no different when it comes to collective rights. Amicable resolution in collective actions is an increasing reality, which brings, as a backdrop, the need to safeguard the public interest underlying the conflict. The advantages of a “tailored” and more flexible solution to the concrete case (process architects) cannot turn into a “whatever works” realm. There is a debate on whether a fair decision, when resolving conflicts in court, should also serve as a standard in the amicable resolution of conflicts in collective actions, in order to achieve a fair agreement.Thus, within a framework limited to the model of collective actions—a subset of collective processes, drawing on the experience of class actions and the French contractual justice of the proceduralization of contracts—there is a search for useful tools to build a hermeneutical path on the settlements in collective actions in Brazil. It is argued that the essential human right of access to justice, even through collective settlement, should not only be formal and more efficient but should also provide substantial access to justice. This means that the agreement must be responsive to the problems raised in the conflict, and the rights must not only be effective but also realized in the best interest of the group(s), even when the solution is not judicial. The procedural and substantive dimensions of contractual justice will be fundamental for this, as well as the adoption of the cooperative model in collective settlement, so that judicial approval is permeated by the maxim “trust, but verify.” Transparency and participation will be explored in the context of agreements, because an efficient and quick solution that remains a mystery to those involved, or leaves participants feeling they haven’t been treated fairly, is not a process that improves access to justice. The planning (beforehand), the approval (during), and the monitoring of the execution of agreements (after) will be part of the construction of elements that help to objectively control the justice of the agreements. Collective actions carry objectives that cannot be relegated due to the type of solution achieved. Access to justice needs to be fair, reasonable, and in the best interest of the group(s), with respect to the individual and social rights involved, even in amicable resolution. Any society that calls itself democratic has an obligation to fight to avoid errors in conflict resolution, whether in state justice or in alternative dispute resolution methods