Mário Conforti for Conjur
Lawyer at Marcos Martins Advogados
Judicial overload is a long-standing problem in Brazil. Since 2010, the number of new lawsuits has only increased and, with the pandemic, this is likely to get even worse. In order to come up with solutions to speed up the resolution of cases and relieve the Brazilian justice system, it is necessary to understand some of the factors that contribute to this backlog of cases.
One of them is the law that guarantees free legal aid as a way of accessing the courts. The measure is extremely positive. However, there is no strict control by the Judiciary in granting the benefit of gratuity, leading to improper and often abusive use by individuals and companies in their access to justice. In addition, there are the Special Civil and Criminal Courts, the use of which does not depend on the payment of costs by the court. In these two examples, the lack of an initial outlay of money and the absence of a risk of losing the case – i.e. without the losing party having to pay the costs paid by the winning party – act as a stimulus to filing unsound legal actions.
For example, Iata (International Air Transport Association) has released figures showing that Brazil is the country where the most lawsuits are filed against airlines. Of 100 international flights between Brazil and the United States, 79 will be the subject of a lawsuit, according to Iata. In the United States, which has the largest aviation market in the world, only 0.01% of flights will be the subject of a lawsuit. This litigiousness must be broken.
To make matters even more complicated, in addition to the Federal and State courts, Brazil’s judicial organization includes specialized courts , such as the Labour, Electoral and Military courts, whose appeals can end up in the Supreme Court. Finally, the federal entities are among the biggest litigants in Brazil. The Federal Government, for example, accounted for almost half of all tax foreclosures in 2019.
Faced with the crisis scenario that is yet to come, it is extremely important to create solutions to prevent lawsuits from dragging on, such as conciliation. Despite being provided for in various laws, such as the Code of Civil Procedure (Law No. 13.105 of 2015), this important measure is still underutilized. According to the “Justice in Numbers” report produced by the CNJ (National Council of Justice), only 12.5% of cases were resolved in this way in 2019.
In order to make progress on this issue, there needs to be a joint effort by the public authorities and civil society to understand that fighting and conflict are not the best option for resolving problems. Public authorities have a duty to encourage conciliation, either through legislation (procedural laws providing for conciliation as a way of resolving judicial or extrajudicial disputes, which already exists) or through specific actions, such as the National Conciliation Week, organized by the CNJ since 2006.
Civil society (citizens and companies), for its part,must understand and realize its ability to solve problems without the need for judicial intervention. In a dispute, there will always be two sides to the controversy, so learning to give in, in some situations, is fundamental to reaching negotiated solutions to problems.
Law schools also have an important role to play in encouraging and developing future graduates’ ability to understand the importance of negotiation, not just encouraging a culture of convincing, of persuasion, as if the lawyer’s role was simply to win the duel of argument with the other party’s lawyer.
I believe that de-judicialization should be the main way to alleviate the demands on the Judiciary, with means of resolving conflicts such as negotiation, mediation, conciliation and arbitration. Negotiation is carried out by the parties themselves, without the intervention of third parties. This is the case of the consumer who amicably resolves a problem with the seller or service provider.
Mediation, on the other hand, involves the participation of a third party (mediator), who will assist the parties in resolving the dispute, facilitating dialog between them, but who will not interfere in the agreement, i.e. has no decision-making power. The parties involved in mediation must reach a consensus. Conciliation also involves the participation of a third party (conciliator), who, unlike the mediator, can adopt a more active stance, but, as in mediation, has no decision-making power. As these are consensual solutions, it must be made clear that the parties involved in a mediation or conciliation process are under no obligation to reach an agreement.
Finally, arbitration is an alternative dispute resolution method, but it is not consensual. The parties contract arbitration to resolve a dispute that, as a rule, would be resolved in the state judiciary. There is consensus between the parties only on the adoption of arbitration to resolve their dispute, which, however, will be decided by an arbitrator or an arbitral tribunal.
In this way, by expanding the possibilities for resolving conflicts without the involvement of the Judiciary, we will help ensure that the courts are concerned with cases that are effectively impossible to resolve in any other way. In the same way, smaller conflicts can be resolved more quickly and we can improve the culture of conciliation in the country.
