Conciliação em ações previdenciárias nos juizados especiais federais a negociação institucionalizada de direitos sociais entre estado e pessoa cidadă

Abstract

The present thesis analyzes the institutionalization of conciliation as an alternative means for conflict resolution within the scope of Federal Small Claim Courts, which was, initially, a tool to assist in the judiciary crisis and relieve the rising number of demands, as well as to provide speed to lawsuit closures, especially in cases concerning welfare system issues and the relation between the conciliatory parties in these disputes, aiming to analyze particularly the assumption of the isonomy in dealmaking. Alternative Dispute Resolution was raised as a means to empower North American communities, giving the citizens the opportunity to make deals over disputes among themselves, mediated by someone chosen as common will by all the parties, leading to the origin of the so-called multi-door courthouse system and of the idea that, in a long term, the number of conflicts in the society would decrease, reaching the concept of social pacification. The legislation concerning small claim courts has, as one of its purposes, the procedural economy, and the closure of disputes as quickly as possible, promoting conciliation as a means to this end, as often as it can be, whilst the specific regulations on mediation highlight the impossibility of the act when one of the parties is hypo sufficient. In this sense, the Resolution no 125 of the National Justice Council is considered as a legislative milestone of the auto composition of conflicts in the Judicial Power. One of the requirements for the parties to carry out the auto composition of litigation is the isonomy, the equality between two (or more) agents, in a way that the resources and means to negotiate their interests are available. It sounds a bit questionable the existence, among the Estate and citizens such condition regarding the welfare system demands, even though the citizens have, during the conciliation act, someone technically able to guide them juridically, considering it is a person who has the power and duty to provide negotiation. Hence, the general objective is to analyze the adequacy of the conciliatory mechanism as an instrument used for the definitive resolution of conflicts in the Federal Small-Claims Courts, specifically in welfare benefits lawsuits. Therefore, this research is characterized as both qualitative and quantitative, in which the hypothetical-deductive approach method and the systemic procedure method are used, aided by statistical, comparative, and historical-evolutionary methods, using bibliographic research techniques and indirect documentation. In the end, the analysis highlights a serious legal inadequacy of the conciliation as a means of conflict resolution in this specific field due to the citizen hypo sufficiency, and the cost to the Judicial Power not having a significant reduction of demands on Federal Small Claim Courts.