O tratamento adequado de conflitos no processo civil brasileiro

Abstract

The present research intends to analyze the way the Brazilian civil procedure treats civil conflicts, to investigate, from the hypothetic-deductive method, the existence, or not, of an adequate treatment, that, from constructive processes, is able to extract the positive aspects of interpersonal disputes. Justice exists to regulate society, establishing rights and obligations, in order to ensure a peaceful life amongst citizens. However, conflict is inherent to the communal life, therefore justice must predict means to treat social tensions. These means are studied by procedural justice, which, historically, has entailed the pacification office to the judiciary almost exclusively. The analysis of the Judiciary’s operations, in turn, allow verification that, in face of the congestion of cases, combined with a combative logic, the judiciary procedure has worsened conflicts rather than solving them. In this context, under the light of the 1988 Brazilian Federal Constitution, the civil procedure underwent reformulations which culminated on the 2015 Civil Procedure Code promulgation. In this, the renewed understanding of access to justice, party participation and the matching of the procedure to the case appear as fundamentals to the procedural norms. Concurrently the design of an adequate conflict treatment microsystem is on course, composed by norms that discipline the main mechanisms, so called “alternative”, of conflict resolution, those being prevalent on the national order: arbitration, mediation and conciliation. Hence the proposal of civil disputes treatment implies in the conjugation of the tools available in the legal order, in order to architect the most adequate strategy for both parties, regarding their respective conflicts. Thus the meticulous study of available conflict treatment techniques is paramount, as well as the ceaseless reformulation of the procedural actors’ culture, so that, ultimately, Justice is capable of realizing the goal of social peace.