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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| 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 |
| 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. |
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