A Case Analysis from Brazil
Social conflicts are becoming more complex every day and, therefore, the development of alternative forms of conflict resolution is necessary in view of the limited role of the Judiciary. With this, mediation gains more space in Brazil and in the world through the 2019 Singapore Convention on Mediation. Mediation is beneficial in the urban context to stimulate the population’s participation and guarantee legitimacy at different levels of power. It enables public and private convergences, better public interest comprehension about the best way of life in cities and enhanced democratic management due to better dialogue and cooperation with the public administration. Mediation focuses on the interventions’ reasons, the role of those involved in the process, welcoming the urban conflict with its peculiarities. It promotes the constitutional principles of democracy, pacification, solidarity, dignity, autonomy of will, speed and popular participation in the administration of Justice. However, in urban conflicts, which involve public administration and a multiplicity of parts, it is often necessary to apply collective or multiparty mediation. Thus, the article’s main objective is to address the effectiveness of multiparty mediation as a solution to urban conflicts through the analysis of 5 (five) concrete cases mediated at the Judicial Dispute Resolution Centers – CEJUSC of the Rio Grande State Court of Justice of the South in Brazil. In the first step, a theoretical-descriptive analysis of multiparty mediation in Brazil and the mediator’s role is carried out. In a second step, we will perform the analysis of practical cases to reach the appropriate conclusions.
Table of Contents
1. Mediation in Brazil
2. Multiparty Urban Disputes
3. Multiparty Mediation
3.1. Presence of Public Entities
3.2. Protocol, Diagnosis and Planning
3.3. Judicial Confirmation: Settlement Agreement’s Legal Validity
4. Mediation Techniques for Multiparty Disputes
5. Analysis of Multiparty Mediation Effectiveness in the Light
of Practical Cases
Mediation is beneficial in the urban context to stimulate the population’s participation and guarantee legitimacy at different levels of power. It enables public and private convergences, better public interest comprehension about the best way of life in cities, and enhanced democratic management due to better dialogue and cooperation with the public administration. Mediation focuses on the interventions’ reasons, the role of those involved in the process, welcoming the urban conflict with its peculiarities. It also promotes the constitutional principles of democracy, pacification, solidarity, dignity, the autonomy of will, speed, and popular participation in the administration of Justice. Besides, mediation, when practiced by the public administration, strictly complies with the principles set out in Article 37 of the Federal Constitution, namely: lawfulness, impersonality, morality, publicity, and efficiency. Such principles applied in Brazil are very similar to those provided for in article 6 of the Administrative Procedure Code of the Russian Federation. Multiparty mediation has protocols that are broader than mediation in an everyday context (dyadic or two-party mediation). It promotes participation, multiple actions, democratic management, legitimacy, and the integration of different actors in the population’s interest. Thus, it necessarily involves public entities such as Public Ministry, Public Defender, Legislative Power, Executive Power, Public Advocacy, and Representative Entities.The complexity in multiparty mediations requires planning. One must explain the procedures that define the schedule, operating rules, studies, and other information relevant to mediators’ work. The effectiveness of applying the rules of conduct in the face of negotiations depends on experience, skill, and feeling to lead the effective dialogue to resolve the conflict, both in the legal and sociological spheres. In line with those above, the cases presented in this research represent repossession of ownership and urban mobility. Through a prospective dialogue and the public administration’s presence, multiparty mediation succeeded. Thus, the intensity and permanence of interpersonal bonds are evident, considering the different forms of coexistence in the urban space, according to the principle of mediation, which aims to re-establish the relationships between individuals living in the community. The article’s main objective is to address multiparty mediation’s effectiveness as a solution to urban conflicts. The work thus outlines specific topics: 1. A brief history of mediation in Brazil; 2. Expository report on collective disputes in the city; 3. Aspects of multiparty mediation considering protocol, diagnosis, approval, and public entities’ presence; 4. Differentiated techniques of multiparty mediation; 5. The effectiveness of mediation on the five cases presented. The article has a descriptive approach. It describes the application of mediation in Brazil, focusing on multiparty mediation. It is also prescriptive for it establishes the importance of analyzing practical cases for the evolution of best practices and mediation approaches. It is worth mentioning that there is a limited number of researches addressing the issue by analyzing practical cases that involve the public administration; however, they do so in multiparty negotiations, not mediations. Nevertheless, they are essential because mediation is a negotiation with a neutral third party. The references consulted are based on specific technical literature, scientific articles, manuals on the subject, and Brazilian legislation on mediation.
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