Proposta de releitura do princípio da inafastabilidade da jurisdição: introdução de métodos autocompositivos e fim do monopólio judicial de solução de conflito. Marco legal da mediação no Brasil e na Itália

Abstract

This study focuses on the evolving concept of jurisdiction in the sense that its dispute settlement function is always associated with cultural aspects, among other factors relating to the social context. Therefore, when such driving forces disrupt the existing system (the status quo), a reinterpretation of jurisdiction can be necessary. Thus, considering the integration between culture and law while observing, currently, a break of the contemporary state with the monopolistic model and with the award procedure for conflict resolution, which, influenced by the new constitutionalism and post-positivism concepts, introduce the autocompositive methods into the jurisdictional functions, this work proposes the reinterpretation of the principle of non-obviation of jurisdiction in order to fit it into the scope of the postmodern state. Among the changes made by the Brazilian state, which broke up with the classical concept of jurisdiction, it is possible to mention the successive conciliation projects developed by the national courts; the public policy for the management of conflict resolution established by the National Justice Council s Resolution No. 125/2010 and the implementation of CCAF - the Federal Conciliation and Arbitration Chamber by AGU the Brazilian Attorney-General s Department. Based on the understanding of the end of jurisdictional monopoly of the state in its judicial capacity, as well as the expansion of its jurisdictional scope, the Judiciary will be allowed to exercise its competence as a subsidy only when the parties make an attempt to settle the dispute through other conflict resolution mechanisms, as well as in those cases which require immediate judicial protection. Thus, after examining the claim,the judge will be able to dismiss the case without prejudice in view of lack of interest, since the award procedure is not the most suitable for the conflict resolution at that moment. Although the institutionalization of the state mediation might mean a primary function of the Judiciary by means of the judicial mediation tool, this new function must also be founded on the postmodern concept of state a subsidizing state, and not a monopolistic one. Therefore, the private tools for conflict resolution must be fostered by the state to support the society so that the judicial mediation will not go against the principles of a less interventionist state. Finally, this work proposes to study the legal framework of mediation in Brazil, in the European Union and in Italy, aiming to contribute to a more harmonious introduction of this autocompositive method to the contemporary Democratic State of Law.