ORIGINAL ARTICLE
FILHO, José Alexandrino Saraiva [1]
FILHO, José Alexandrino Saraiva. The Challenges of Family Mediation in divorce cases and the effects of society fragmentation on marital bonds. Revista Científica Multidisciplinar Núcleo do Conhecimento. 04 year, Ed. 08, Vol. 01, pp. 116-126. August 2019. ISSN: 2448-0959, Access link in: https://www.nucleodoconhecimento.com.br/law/family-mediation-in-divorce
SUMMARY
The aim of this essay is to discuss the dilemmas of Article 226, § 6 of the Federal Constitution of 1988 the divorce and its effects arising from the dissolution of marital society in the context of family conflicts, in the perspectives of family mediation, addressing its processes in general, to the methods and perspectives results in marital separation processes, the difficulties present in professional practice, their processes of parental alienation nowadays, their impacts and effects on the processes psychological problems involved and the brief analysis of conflict resolution policy.
Keywords: Family mediation, dissolution of marital society, Federal Constitution/1988, conflict resolution, parental alienation.
1. INTRODUCTION
This essay aims to evaluate the contribution of the family mediation method in the divorce proceedings of marital society in the light of the Federal Constitution of 1988, its reflections on the Public Policies of the Family and Defense of Rights. Therefore, we sought to investigate the following elementary aspects: difficulties encountered in the practice of mediation in the vision of different professions that have direct or indirect contact with the parties and social service operators that help as mediators working with justice in the Family Courts, the basic psychological aspects of those involved, evaluate the advantages of mediation in the understanding of the professionals involved and identify through statistical documents the outcomes of the cases dissolution of society and conjugal bond assisted by the conflict resolution bodies.
The method used in the research was qualitative that allowed exploring and dimensioning the repercussion of the facts about the subjects or groups that still have little information on the subject addressed.
According to Minayo (1994), qualitative studies tend to show aspects often difficult to quantify: feelings, motivations, beliefs, attitudes and variations in the perceptions of individuals (the so-called world views, especially the common sense residence).
2. POLITICAL ASPECTS IN FAMILY MEDIATION PROCESSES IN THE DISSOLUTION OF SOCIETY AND MARITAL TIES
It is known that for centuries in history marriage has played the function of promoting the social and economic position before society itself. With the beginning of industrialization and the advent of urbanization, the work ceased to be centered in the home and family and became an autonomous unit. Because of this fact, couples began to expect from the marriage a source of personal satisfaction and intimacy that met the needs of the marital relationship. And, to the extent that marriage serves to meet the emotional needs of the couple, over time, the relationship itself becomes vulnerable, manifesting the constant indisposition and intolerance to which there is no emotional satisfaction in the conjugal society.
There are several social impacts that have contributed in recent years to the significant increase in both recognition and dissolution rates of stable union. Initially, if once life expectancy together, linked to romanticism in previous decades, especially those of 70, 80 and 90 made people stay longer in their marital relations, that is, the patriarchal paradigm of the twentieth century was still submissive to that of the previous century; only with improvements in the conquest of feminism[2].
Second Ahons (1995):
(…) the focus of marriage ceases to be the economic position to emphasize love and interest between two people, only at the beginning of the twentieth century, when the time of life was shorter, little had time to live adulthood with a single companion. (…) in the binuclear family parents live in different homes, but seek to talk to meet their needs and their children.
It is perceived the position considered that the feminist movement indirectly had a significant participation in the increase in divorce rates, because in the 1960s and 1970s most families had only one “economic provider”. Due to the entry of women into the labor market, this allowed a relative autonomy financially, and independence from the objective point of view, allowed the cause factor the woman to propose to ask for “unquite”[3], since she depended no longer on her husband/partner to sustain her offspring. Through this decision, both women with the unfolding of this external factor, work and man both had the possibility of trying to meet their needs in another conjugal society, since they had a long period of life. “Women work and are more financially independent. Why should a couple who don’t love themselves stay together when they don’t have 30 or 40 years of life ahead? “.
It accentuates Osório (2002), which due to cultural transformations over the years, the socioeconomic movement and civilizational process have changed over the centuries the expectations, need and desires of couples. This very dynamic of conjugal relations today has become a set, in which each constitutive element retains its properties independent of the presence of another. To this end, we observe the transition from the constitution of what was “together”, the transmissions of these steps also changed psychic structures and emotional structures; the natural phenomenon of autonomy becomes part of the list of rights expectations.
The dissolution of conjugal society involves feelings amid the suffering and anguish on both sides; the mediator with his[4] technical training experiences the complications of emotional order experienced by couples in crisis and in the process of separation. Mediation serves as a technical aid in the reorganization of the family system, due to the family transition to binuclear. In fact, separation breaks the marriage bond if there are no children, but if any, shared custody is segmented so that children can benefit from the way that the relationship even broken, becomes collaboration and support in relation to children, and these in turn begin to experience marital disruption with attenuators if binding effects do not have problems with the agreement of a legal nature, that is, parents become partners in the care of parental obligations, reinforcing bonds of family relationship. Shared custody is essential to ensure that the child lives with both parents.
3. THE CURRENT CHALLENGES FOR AFFIRMATIVE ACTIONS AND THE NEED FOR REPARATORY PUBLIC POLICIES IN THE FAMILY ENVIRONMENT
Affirmative actions in the family sphere are special measures taken to ensure adequate progress of certain groups, social or individuals who need protection that may be necessary and useful to provide such groups or individuals with , equal enjoyment or exercise of human rights and fundamental freedoms, provided that such measures do not result in the maintenance of separate rights for different groups, and do not continue after their objectives have been achieved. The possibility of adopting affirmative actions has support in the arts. 3rd and 5th both federal constitution/88 and, integrated into our legal order by Decree No. 65.810/69.
It is noteworthy that the implementation of public policies at the level of resolution of family conflicts is indispensable for ensuring relevant constitutional rights. They seek to realign the means of access and forms of competitiveness in order to ensure conditions for racial, social or ethnic groups, as well as individuals who need the specific protection of the State, to exercise the rights enshrined in the Constitution of Republic.
The changes brought in Brazilian legislation, specifically through Resolution No. 125 of the National Council of Justice, and Law 13.105/15, the main points addressed, such as concepts and principles. The theme gains prominence, especially in view of the current context, since the New Code of Civil Procedure is about to take effect, Law 13.1[5]05/2015, and that through it creates a great expectation for better functioning of the Judiciary.
According to Reinaldo Dias and Fernanda [6]Matos, public policies can be understood as “a means of realising the rights that are codified in the laws of a country”. It is the establishment of goals and strategies aimed at solving public problems or “achieving higher levels of social well-being”.
In the legal practice centers either in universities or judicial centres, for example, the requesting party may request a call in person or online and the requested party is explained to it the advantages of building a solution consensus, and also the alert for the slowness and emotional wear and tear that will face in a judicial demand, ends up accepting the idea of participating in mediation and conciliation sessions. However, often due to resentment, hurts or still because he has no confidence in the method applied outside the judiciary ends up entering the judicial path.
With the prediction of the mediation and conciliation hearing in the New Code of Civil Procedure in article 334, it[7] will give another opportunity for the parties to enter into a consensus. Furthermore, if both parties do not have an interest the hearing will not be held, in accordance with paragraph 4, item I of the same legal law, it demonstrates that the parties are not intended to put into an agreement. With this, it seems that the objective of institutionalizing mediation and conciliation is to give alternatives to the parties, and to bring them knowledge of the existence of the positive means, and not to regulate their procedures, or to impose their use.
It is clear that affirmative policies in the macro sense, when addressed to combat genuine factual situations incompatible with the foundations and principles of the Social State, or to give consistency and effectiveness, do not remind privileges, in or with them get confused; instead of functioning by excluding rights subjects, they print in their objectives and methods the mark of the appreciation of inclusion, especially those to which the most elementary benefits of historical material and intellectual heritage are denied. Often, to focus, it is sufficient to maintain the status quo, under the argument of authority of strict respect for the principle of equality.
According to Laura (2007, p. 86):
(…) It is worth pointing out again that these statements are not only propositional, but operative. There is no way to effectively fight discrimination if universal social security networks are not woven with greater impacts on less autonomous social groups. (..) The exit is not in isolated actions that seek transitional relief from irreparable damage, but in stable policies that contain the conditions necessary to prevent people from reaching marginality and exclusion. These networks should work permanently to provide guarantees from birth to each citizen.
As observed, in this understanding, by affirmative policies, it is not only a set of proposals and measures aimed at repairing social injustices to certain groups historically discriminated against by exclusion; on the contrary, one declares the other in results; although each has its own density, which means to say that by affirmative policy it has framing in an order of active and real importance, as to the reparatory public policy it is of social adjustment, aims at the treatment in defense of stability in view of underemployment, that is, it is based on social responsibility, including when it is concerned with the effects of consequences of conflicts of family relationships.
It is important to emphasize that the public policies that are reparatory in the family sphere are actions created with certain deadlines, that is, they last a certain period in a preventive and reconstructive manner, to create balance and opportunities for people to obtain peace at least indoors.
For this, consensual means should not be used as immediate measures, aiming at the extinction of legal proceedings in large quantities, but as a long-term public policy, aiming at cultural change, as well as a preventive method of the emergence of new conflicts.
But affirmative actions must not be at random, at the institutional and bureaucratic level, their adherence must be absolute, it is to seek awareness of the responsibilities inherent to paternity and motherhood through actions that provide a greater participation of these groups in the education of children, and minimize the difficulties of probable echoes of sentimental order.
4. FAMILY CONFLICTS AND THE PROBLEM OF PARENTAL ALIENATION
Law No. 12,31810 prays in its articles on Parental Alienation, combined with Law 8.069/90 – Statute of children and adolescents – is the regulatory legal law that provides for the full protection of children and adolescents, with this obligation to families, the Union, States and Municipalities and society, in accordance with art. 227, caput, of the Federal Constitution of 1988.
It is known that the rupture of a marital relationship is always an exhausting moment for the family; because it requires the preparation of new life sheets for parents and children, in addition to the division of assets, the payment of pension, and other issues. Such events often come preceded by divergences and discussions, related to psychological and social factors.
All traditional legal demands to date, has been insufficient for the fulfillment of a whole physical procedural contingent installed in our Brazilian courts. The advent of CNJ Resolution 125/10, had been decisive for the emergence of the Mediator (an impartial third party), which would propose to the parties and facilitating communication for the conflicting couple to find alternatives that were their interests and their children, reaching a possible agreement. In this peaceful dialectic, parents are helped to understand their children’s needs and develop a cooperative relationship in parenting issues.
In this pre-procedural path, we understand by “building a social problem” the internal process by which a particular family group when the situation in which its members are located, is considered for some reason, socially problematic, being persons who [8]threaten public peace, or who must be specially protected, or who should not be discriminated against, etc.
It is up to the mediator with argumentation techniques in the course of instruction to verify that on the other side there is someone who is also practicing another type of abuse, that of a moral nature. In this case, the measures to protect children and/or adolescents, which are at a concrete risk and have repeatedly suffered abuses whether of physical and/or moral order by the parents who, in the thesis, after the broad defense, if the abuse is observed, may even be deprived of family power, in accordance with Law 8.069/90.
Thus, from the ECA, at the same time that we observe a process of revaluation of the family group, to the extent that it is defined by legislation as the privileged social space for human socializatio[9]n, when the characteristics of the families served are now visualized, give room for the family to be qualified as negligent, aggressor, etc., that is, inadequate for the development of children and adolescents and unable to guarantee them the rights defined by the ECA, As Soares warns, depending on the criterion used to measure, for example, “negligence”, “(.,.) there is a risk of incriminating much of the low-income population that cannot dress, feed and take appropriate care of their offspring” (SOARES, 1997).
CONCLUSION
As analyzed, Family Mediation is gradually adapting to the era of dispute settlement. The proofs of this statement can be carried out through the analysis of the nature of the demands demonstrates that the negotiation experience can be successful immediately, if conducted by experienced mediators.
To this end, if the paradigm of cultural thinking is changed, consequently, it will decrease discredit directed to the judiciary, and the parties will have the opportunity to resolve their disputes in a rapid period.
However, the right thing is that much remains to be accomplished. In addition to the need to create and improve several other public policies related to health education, work, basic sanitation and others, it is verified that the judicialization culture itself presents several obstacles, which have not been analysed in this essay for epistemological cutting, but which are equally relevant in order to move forward in this matter. Discussions and controversies on the subject are inevitable. That is why the debate is relevant and should be stimulated.
We believe that public policies to protect rights may be more effective as their agents undertake an effort to dialogue with the complaining population, taking into account cultural differences in family organisation and dominant values in different social classes. The importance of mediation in the resolution of disputes inherent in that matter should be emphasized, by concluding agreements, in order to avoid the imposition of repeated appeals, the results of which are innocuous and disastrous for the family, in addition to contribute to the involvement of the agendas of judgments.
The feasibility of this implies understanding the differences not as the cause of social problems, but as one of the results of a society marked by inequality. Although the walk is long, the arrival never becomes possible without the first steps.
REFERENCES
AHRONS, Constance. O bom divórcio: como manter a família unida quando o casamento termina. Rio de Janeiro: Objetiva, 1995.
BRASIL. Lein°13105, de 16 de março de 2015. Institui o Código de Processo Civil. Brasília: Senado Federal, 2015. Disponível em: http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/Lei/L13105.htm. Acesso em: 20. abr.2018.
BRASIL. Resolução n° 125 de 29 de novembro de 2010. Institui a Política Judiciária Nacional de tratamento adequado dos conflitos de interesses no âmbito do Poder Judiciário e dá outras providências. Brasília: Conselho Nacional de Justiça, 2010.
DIAS, Reinaldo; MATOS, Fernanda. Políticas Públicas: Princípios, propósitos e processos. São Paulo: Atlas, 2011.
CÂMARA DOS DEPUTADOS. http://www2.camara.leg.br/legin/fed/decret/1960-1969/decreto-65810-8-dezembro-1969-407323-norma-pe.html. Acesso em 12 abr. 2018.
CONSELHO NCAIONAL DE JUSTIÇA. http://www.cnj.jus.br/images/stories/docs_cnj/resolucao/arquivo_integral_republicacao_resolucao_n_125.pdf. Acesso em: 20.abr.2018.
ESTATUTO da criança e do adolescente: lei 8069/90 (1990). Brasília.
FERNANDES, José Antônio da Costa. Política Pública da Família e de Defesa dos Direitos. Valinhos: 2015. https://www.colaboraread.com.br/aluno/conteudoweb/index/1124989001?atividadeDisciplinaId=5484010 . Acesso02/04/2018.
LEI Nº 12.318, DE 26 DE AGOSTO DE 2010. Disponível em: http://www.alienacaoparental.com.br/lei-sap. Acesso em 12 abr. 2018.
MASOTTI, Viviane. Direitos e Seguridade Social. Valinhos: 2015.
MINAYO, M. C. Ciência, técnica e arte: o desafio da Pesquisa Social. In: ______. (Org.) Pesquisa social: teoria, método e criatividade. Petrópolis: Vozes, 2001, p. 09-30.
______. O desafio do conhecimento. São Paulo/Rio de Janeiro: HUCITEC-ABRASCO, 1994.
OSÓRIO, Luís Carlos; VALLE, Maria Elizabeth do. op. cit., 2002.
PAUTASSI, Laura C. Há igualdade na desigualdade? Abrangência e limites das ações afirmativas. Sur, Rev. int. direitos human. [online]. 2007, vol.4, n.6, pp.70-93. ISSN 1806-6445. Disponível em: https://sur.conectas.org/wp-content/uploads/2017/11/sur6-port-laura-c-pautassi.pdf. Acesso12 setembro de 2017.
VALLE, Maria Elizabeth do. Terapia de famílias – novas tendências. São Paulo: Artmed, 2002.
WIKIPEDIA. https://pt.wikipedia.org/wiki/Desquite. Acesso em: 14 abr. 2018.
2. “Entre as décadas de 1930 e 1960, muitas manifestações feministas oscilavam mediante as mudanças desenvolvidas no cenário político nacional. This revolution of customs engendered in the 1960s paved the way for feminism to become a movement of greater strength and combativeness. Even in the context of the dictatorship, women began to have a critical position and organize themselves to question more deeply their role in society. The problem of behavior patterns began to go hand in hand with the left-wing ideas that inspired several personalities participating in this movement.
3. Unquiteised is a term of law that was used to designate marital splits before the filing of divorce. It is equivalent to the current separation, in which the separation of the spouses and their property occurs, but there is no dissolution of the marriage bond
4. Para atuar como mediador judicial é necessário ser graduado há pelo menos dois anos em qualquer área de formação, nos moldes do art. 11 da Lei n. 13.140, de 26 de junho de 2015 (Lei da Mediação). A Resolução n. 125/2010 do CNJ, a Lei da Mediação e o Novo Código de Processo Civil (NCPC – Lei 13.105/2015) determinam que o mediador e o conciliador judicial devem ter capacitação, por meio de curso realizado por entidade credenciada e reconhecida, em conformidade com os parâmetros curriculares definidos pelo Conselho Nacional de Justiça em conjunto com o Ministério da Justiça.
5. It is worth noting that the new Code of Civil Procedure, in Article 167, paragraph 5 prohibits the exercise of law by mediators and conciliators in the judgment in which they perform their functions.
6. DIAS, Reinaldo; MATOS, Fernanda. Políticas Públicas: Princípios, propósitos e processos. São Paulo: Atlas, 2011, p. 15.
7. “Art. 334 NCPC. – If the application fulfils the essential requirements and is not the case of injunction of the application, the judge shall designate conciliation or mediation hearing at least thirty (30) days, and the defendant should be quoted at least 20 (twenty) days of Advance.
§ 1 – The conciliator or mediator, where any, shall act necessarily at the conciliation or mediation hearing, observing the provisions of this Code, as well as the provisions of the law of judicial organization.
(…)
§ 7 – The conciliation or mediation hearing may take place electronically, in accordance with the law.”
8. “Art. 6º Characterized typical acts of parental alienation or any conduct that makes it difficult to live the coexistence of a child or adolescent with a parent, in autonomous or incidental action, the judge may cumulatively or not, without prejudice to the resulting civil liability criminal instruments capable of inhibiting or mitigating its effects, depending on the seriousness of the case:
I – declare the occurrence of parental alienation and warn the alienator;
II – expand the family coexistence regime in favor of the alienated parent;
III – set a fine for the alienator;
IV – determine psychological and/or biopsychosocial follow-up;
V – determine the change of the guard to shared guard or its inversion;
VI – determine the precautionary fixation of the child’s or adolescent’s domicile;
VII – declare the suspension of parental authority.
Sole paragraph. Characterized an abusive change in address, unfeasible or obstruction of family coexistence, the judge may also reverse the obligation to take the child or adolescent from the residence of the parent, on the occasion of the alternations of the periods of family coexistence. As noted, the imposition on art. 6 of Law 12.318/90 does not exclude the verification of the civil or criminal liability of the alienating.”
9. “Art. 19 – Every child or adolescent has the right to be raised and educated within his family and, exceptionally, in a substitute family, ensured family and community coexistence, in an environment free from the presence of people dependent on narcotics” (STATUS 1990).”
[1] Graduated in Law from the Moacyr Sreder Bastos University Center (MSB). Graduated in Social Work from the Pythagoras University – RJ / Graduating in Psychology from UFF-RJ.
Submitted: April, 2018.
Approved: August, 2019.
