Mediação: uma parajurisdição no sistema judicial brasileiro

Mediation was introduced in Brazil by law and consists of an adaptation of negotiating techniques aimed at securing mutual dispute settlements. As such, the instrument challenges the legal community to consider and understand its significance, to the extent the method is explicitly prescribed as a t...

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Detalles Bibliográficos
Autor: Buika, Heloisa Leonor
Tipo de recurso: tesis doctoral
Fecha de publicación:2019
País:España
Institución:Universidad de Salamanca (USAL)
Repositorio:GREDOS. Repositorio Institucional de la Universidad de Salamanca
OAI Identifier:oai:gredos.usal.es:10366/140372
Acceso en línea:http://hdl.handle.net/10366/140372
Access Level:acceso abierto
Palabra clave:Tesis y disertaciones académicas
Universidad de Salamanca (España)
Tesis Doctoral
Academic dissertations
Mediación
Parajurisdicción
5604.01 Funcionarios de Justicia y Procesos Judiciales
Descripción
Sumario:Mediation was introduced in Brazil by law and consists of an adaptation of negotiating techniques aimed at securing mutual dispute settlements. As such, the instrument challenges the legal community to consider and understand its significance, to the extent the method is explicitly prescribed as a technical activity and a necessary and essential procedure of judicial proceedings, pursuant to the provisions governing the matter in the Mediation Act (Lei de Mediação – Law No. 13,140/2015) and the Brazilian Code of Civil Procedure (Law No. 13,105/2015), both of which entered into effect in 2016 and formally establish the legal framework for mediation in Brazil. In the light of the connection between mediation and jurisdiction, addressing the issue is required for purposes of determining whether mediation can be defined as an adequate parajurisdictional dispute settlement instrument, in a manner that preserves the substance of jurisdictional fora and prevents their comingling with the practice of mediation, which, notwithstanding its pacifying role (similar to that of legal jurisdictional fora), is applied by different means (i.e. without mandatory imposition). An additional matter warranting consideration is the distinction between conciliation and mediation, insofar as the two activities intersect in practice and aim to achieve consensus. Finally, and in the light of the above, amendment of the Brazilian Code of Civil Procedure and of the Mediation Act is proposed, specifically through the removal of specific clauses and recommended improvements to others.