Mediation and Conciliation along the Extrajudicial Services to Enlarge Access to Justice

Abstract

Objective: To analyze Law 13.140/2015 and its operative discipline (Provision 67/2018 - CNJ) in order to expand the competence of extrajudicial services for conflicts mediation and conciliation, targeting at enlarging the access to justice.

Methodological Approach: This study, of qualitative and explanatory nature, is based on secondary and documental data and information.

Relevance:  The transfer of conflicts resolution, that could be managed administratively by extrajudicial services, increases the possibility of access to Justice to the society as a whole. Extrajudicial services are of public character, delegated by the State and costs as well the responsibility for operating expenses is an exclusive responsibility of the scrivener. So, transferring conflicts resolution to extrajudicial services does not bring about additional costs to the State. Also, present study sums up to CNJ efforts (Res 125/2010) to stimulate auto composition to solve conflicts not by litigation.

Main Results: Analysis of the Law 13.140/2015 and Provision 67/2018 CNJ demonstrates that specialty of services to solve conflicts constrains the attribution of extrajudicial services and constitutes a violation to Justice access by itself. It is a counter sense to normative hurdles and to the public policy on auto compositive conflicts, as well as a contradiction to theoretical-philosophical fundaments of mediation and conciliation.  It also contains an incompatibility to historical, teleological and systematic interpretation of article 42 of Law 13.140/2015, as well as an embarrassment to the preventive and social functions of scriveners and notaries.

Theoretical/methodological Contribution: As the article is technical in nature, its major contribution, besides the detailed analysis on the theoretical-philosophical principles of mediation and conciliation, may be the defense of a fine adjustment of thematic limitation of extrajudicial services, by fine-tuning the Provision 67/2018 CNJ with the operational reality.

Conclusion: The analysis of the Law 13.140/2015 and Provision 67/2018 CNJ, induce to conclusions of compatibility, into two cases: limitations in penal and labor conflicts.  However, the analysis also shows seven basic incompatibilities that justify the need for refining the limitations by competence, especially on the Provision 67/2018 CNJ.  Finally, the analysis demands reviewing the limitation, especially because of the difficulty to specify competences singled out in each extrajudicial service.  Lately, conflicts grew in complexity and are multifaceted, preventing a solely use of individual competence. That is, extrajudicial services need ample knowledge to solve a conflict, leading to the lapse of limitation by specialty.