JUDICIAL MEDIATION IN THE CONTEXT OF THE COMPANY

• DOI: 10.22533/at.ed.1592102218029

• Palavras-chave: Alternative means of conflict resolution, judicial mediation, business sector, consensualism.

• Keywords: Alternative means of conflict resolution, judicial mediation, business sector, consensualism.

• Abstract:

  This article aims to deal with judicial mediation in the context of the company, whose measure is inserted as one of the alternative means of conflict resolution (these being understood as divergence between two or more parties): alternative dispute resolutions (ADRS), in which the solution is delivered to them, whether individuals or legal entities are involved. This institute is foreseen in Brazil in the Judicial Mediation Law under n. 13.140/2015 [1], in the Code of Civil Procedure - Law no. 13.105/2015 [2] and in Resolution number 125/2010 of the National Council of Justice [3].

  Submitting a process to mediation, applicable in the case of a conflict involving available rights or unavailable rights that admit a transaction (when there is the possibility of some kind of negotiation), a third neutral element, called a mediator, assists the parties. In this environment, autonomy of the will is privileged, valuing consensus, which the doctrine calls procedural consensualism. There are legal principles governing the matter. Mediation aims at dialogue between those involved. Companies will have a lot to gain if, facing conflicts in their midst or among other companies, they choose this path. This, little by little, is being known and adopted. In the business sector in Brazil, the challenges are many. And so also when, in the commercial sector, in general, there are conflicts. Our civil procedural law requires that the parties be accompanied by a lawyer or public defender (very important figures in the process), especially in the sessions they hold. These will play a key role in the success of the respective procedures. The present work makes use of bibliographical research, focused on the study of the theories emitted by the authors that expose the subject. It uses national and foreign doctrine, the Law, Court resolutions, the National Council of Justice and the Constitution of the Federative Republic of Brazil. The method will be inductive. Judicial mediations in the country are carried out in the Judicial Centers for Conflict Resolution and Citizenship (CEJUSCS) and also in the Judicial Courts that have jurisdiction. Many countries are familiar with the institute under study, including the United States, France, Japan, Canada and Australia. If a mediation procedure is successful, the result will be consecrated win x win, without loser or winner. In the last two decades, this medium has been used with time gain (shorter process duration) and lower costs. Finally, it is concluded that companies must be suggested, when appropriate, to submit conflicts to mediation, as it is healthy for them, as we understand that it is defined as a public policy measure. If there is a satisfactory result, there is empowerment of the parties.

• Número de páginas: 8