A audiência de mediação sob as perspectivas da Análise Econômica do Processo Civil e da Desjudicialização

Abstract

This study is intended to approach the reasons that prevented the mediation hearing, required in the standard procedure, to achieve the success of reducing the amount of legal proceedings and of implemeting the speedy trial guarantee in the Judiciary. With the insertion of the mediation in the modern concept of access to justice as an appropriate form of dispute resolution, it was sought to understand its main characteristics, from the historical development of the mediation in the Comparative Law study and from the Brazilian legal order, that culminated in the National Council of Justice’s regulatory acts enacted to instigate the mediation, in the mediation’s protagonism in the Civil Procedure Code of 2015 and, in particular, in the Mediation Law. Subsequently, it was needed to develop the economic analysis of the civil procedure, notably about its concept of cooperation that differs from the classic civil procedure jurists’ understanding, that created cooperation duties that, even though contribute to the realization of civil procedure fundamental guarantees, as the adversary system and full defense, can prevent the cooperation from achieving its normative purpose, that is, a fair and effective decision on the merits, within a reasonable time. That way, economic analysis of the civil procedure proves, based on the game theory, that the cooperation is not restricted to a legal phenomenon, and it is, essentialy, a natural and relevant phenomenon to comprehend the society, that may have contributed to a minor increase of the settlement rate, based on the National Council of Justice’s report Justice in Numbers, although the 7 (seven) years of validity of the current Civil Procedure Code. At last, seizing the justice beyond courts phenomenon’s development, in the context of the descentralization of the Judiciary and resizing of the access to justice, it is noted that the mediation in the notary offices and the mediation and the conciliation pre-trial can contribute with the downsizing of the Judiciary’s congesting rate, including by the use of technological tools, preserving the relevance and the prestige of the mediation.