Access to justice as a fundamental human right: multi-door and restorative justice

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ORIGINAL ARTICLE

BARBOSA, André Luciano [1], MATSUSHITA, Thiago Lopes [2]

BARBOSA, André Luciano. MATSUSHITA, Thiago Lopes. Access to justice as a fundamental human right: multi-door and restorative justice. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 08, Vol. 05, pp. 36-50. August 2021. ISSN: 2448-0959, Access Link: https://www.nucleodoconhecimento.com.br/law/multi-door-and-restorative

ABSTRACT

This article has as its central axis to deal with conciliation and restorative justice as appropriate methods of Access to Justice, to this end, it will develop the theme of Multiport Justice in its broad sense. Its main question is to answer what can be improved in the structural, procedural and humanitarian aspects, for the purpose of expanding its practical effects. Initially, the idea of the judiciary as the sole ombudsman between the parties is demystified. Then, the methods of conciliation, mediation, arbitration and restorative justice, including the latter, will be worked out. These methods translate fundamental human rights, to the extent that they expand access to justice in its broad sense, that is, a Justice that overflows the limits of the judiciary. The methodology used in the constructions and reflections of this article is bibliographic, explanatory and descriptive, with research in books in the specialized legal area, without abandoning inductive and deductive methods. Finally, conclusions were presented on the need for practical expansion of the institutes treated, extending the subjects that can be addressed by them and, mainly, making room for the parties, true actors of the conflict, so that they seek, through the various methods appropriate to the solution of controversy, the best way to solve the impasse placed.

Keywords: Fundamental Rights, Access to Justice, Proper Methods, Restorative Justice.

1. INTRODUCTION

Throughout this article, the theme of alternative (adequate) methods of conflict resolution will be developed and deepened, not only in the legal aspect, but also, and mainly, in psychological issues involving this new movement of access to justice, emphasizing that access to justice is a fundamental human right, as provided for in the Federal Constitution (BRASIL, 1988). The subject is extremely relevant in view of the difficult management situation of the Judiciary in terms of budget, structural, human and, ultimately, the quality of the service that is provided to the jurisdiction, as can be seen in the journal of the National Council of Justice called “Justice in Numbers” 2020.

The central axis of this article is the appropriate methods of conflict resolution (conciliation, mediation and arbitration), as well as restorative justice. In this tuning point, what can be improved in the structural, procedural and humanitarian aspects will be answered, for the purpose of expanding its practical effects. The fundamental methodology used in the constructions and reflections of this article is bibliographic, explanatory and descriptive, with extensive research in books in the specialized legal area, without abandoning the inductive and deductive methods.

The failure of a structure reveals the need to seek new practices for the solution of human conflicts, of all natures. Since we have heard of human existence, it is known of the occurrence of conflicts, what varies is the way in which one deals with it. The Judiciary is only a way to surrender the “service of Justice”, however, there are several others that can be used, not only with the scope of decompressing the judiciary, but also, and not least, deliver a better resolution to the impasse placed, for those involved.

First of all, it should be emphasized that Justice is a relative concept, with inconsistent meaning, opportune to the words of Kelsen (2001, p. 25), in his book “O que é Justiça?”:

I started this essay with the question: what is justice? Now, in the end, I’m fully aware that I haven’t answered it. In my favor, as an excuse, is the fact that I find myself in this direction in great company. It would be more than presumptuous to make my readers believe that I would achieve what the greatest thinkers have failed. In fact, I don’t know and I can’t say what justice is, absolute justice, this beautiful dream of humanity. I must satisfy myself with relative justice, and I can only declare what justice means to me: since science is my profession and therefore the most important thing in my life, it is that justice under whose protection science can prosper and, beside it, truth and sincerity. It is the justice of freedom, peace, democracy, tolerance. (our griffin)

Justice as an exclusive product of the Judiciary needs to be demystified from the popular imagination, mass media, curricula of law school, etc. Expressions such as the “Palace of Justice”, “Court of Justice”, “National Council of Justice”, “Dignity of Justice”, among countless others, are completely symbolic and mistaken. In the Code of Civil Procedure, published in 2015, with a simple search tool from “Google”, it is possible to observe that the word “justice” is used 171 times, which does not reveal the best technique, according to Kelsen (2001), just to give another example. Justice is a psychological comfort that can be achieved by various legal and non-legal instruments and certainly not only with the strict application of the legal norm, the latter, as we know, subject to numerous possible interpretations in the most varied legal instances. (CAPPELLETTI; GARTH, 1988)

In another turn, there is, from the outthen to be emphasized, an important update of nomenclature that deserves to be pointed out. Rather than calling conflict resolution “alternative” methods, it has prevailed that the most appropriate technical term would be “appropriate” methods of conflict resolution. The question of terminology revolves around the possibility of the word “alternative” giving rise to the understanding that judicial method would be the “best” (non-alternative – main) and the other only “alternative” (secondary), which is effectively not what is meant, nor is such a conclusion mirrored in empirical reality. In addition, there is talk of Multiportas Justice, this consists of the integration of various forms of dispute resolution, both judicial and extrajudicial. (BEDAQUE, 2011)

The most well-known appropriate methods of conflict resolution are: conciliation, mediation and arbitration, these can take place both in the middle of a judicial process, and outside it (judicial or extrajudicial). All of these, to a greater or lesser extent, have express legal provision. The arts. 165/175 of the new Code of Civil Procedure, published in 2015, as well as Law No. 13,140/15, bring robust regulation on the first two, while the latter, arbitration, has legal provision in Law No. 9,307/96, as well as sparse provisions in other legislation, including, also in the aforementioned codification.

Finally, it is pointed out that in Brasil (2015) Law No. 13,105, §3 of Article 3 expressly determines that the appropriate methods of conflict resolution must be stimulated by all procedural actors, timely transcription:

Conciliation, mediation and other methods of consensual conflict resolution should be encouraged by judges, lawyers, public defenders and members of the Public Prosecutor’s Office, including in the course of the judicial process. (our griffin)

There is also, as well as the above-mentioned passage of law, “other methods” of dispute resolution, in addition to those expressly provided for, and there is, among others, restorative justice, which is structured in several human and legal aspects, which will also be detailed in this study.

This brief, however essential introduction, is carried out, it goes to the heart, in which the fundamental human right of access to appropriate methods of conflict resolution will be addressed, as well as restorative justice, with its main nuances, with conclusion, at the end.

2. MEDIATION, CONCILIATION AND ARBITRATION – DIALOGUES: APPROACHES, REFLECTIONS AND TECHNIQUES

The appropriate forms of conflict resolution involve psychological factors that determine their full satisfaction (FOUCAULT, 2013).

The basic difference between Conciliation and Mediation is the role played by the third mediator. The Conciliator interferes in the procedural relationship, managing the negotiations, suggesting proposals and pointing out the advantages and disadvantages, in order to reach the agreement between the parties, while, in mediation, the Mediator does not influence the people to reach the transaction, simply through the dialogue establishes bridges of communication between the parties, in order to assist in the identification of common interests, so that they can, by themselves, build the solution to the problem through self-composition (art. 165, §2 and 3º, of the NCPC). The rules (Law No. 13,140/15 and NCPC, among others) bring principles, obligations, duties, guarantees, prerogatives and impediments to those who want to dedicate themselves to Conciliation and Mediation (BRASIL, 2015).

In the margins of this technical distinction, it is imperative to recognize that, in practice, they can be confused, assuming special relevance the structural aspects (physical) and the technique to be used. On the first aspect, it is recommended, so that the conciliatory treaties are better conducted, that the physical spaces be airy, welcoming, well lit, round tables and light colors in the environments. It is important to look at the architectural psychology present in the environments, that is, from decoration to the building, everything is important for the conduction of the treaties. There is true interdisciplinary dialogue (BREITMAN; PORTO, 2001)

There are also the most recognized techniques, including: active listening, empathy, individual sessions, freedom to choose proposals, paraphrasing (or recontextualization), lack of haste and summary of the negotiations. Next, each of them is pointed out, reinforcing that they act together, in network and are not mutually exclusive, and, their success, is very related to the practical experience of the mediator. In a systematic way for better understanding, the most recognized ones are presented (BREITMAN; PORTO, 2001):

a) Active listening: it consists of paying attention to what is being reported by those involved in the conflict, including with positive body expression, moving away from parallel thoughts or interruptions, avoiding value judgments about external aspects (clothing, language, tone of voice, look, etc.), when listening carefully there is a greater chance of receiving similar treatment, which increase the chances of composition.

b) Empathy: it is essential that during the recognition of the situation narrated the intermediary demonstrate sensitivity to the question brought, not indifference or minimizing it. From a simple collision between vehicles to complex cases of child custody, it becomes a necessary premise to accept such impasses as a “problem of fact” for the person, even if, obviously, it is not his own, from the personal point of view, for example: the intermediary does not have children or does not move through motor vehicles.

c) Individual sessions: if there are constant reciprocal interruptions during the session, making it difficult to communicate, understand the case or propose positive solutions, it should be considered to listen to those involved separately, in different places, and even, if necessary, at different times. Understanding the versions of each one, in a separate way, it is possible to understand the complexity of the dispute in a more broad and detailed way, and one can effectively try to achieve the solutions.

d) Freedom to choose proposals: the quality of the agreement should be weighed by those involved in the conflict and not by the intermediary. The intermediary must understand and respect the moment of each person’s life cycle. Often the desire to make the agreement stems from the desire not to have to return to the Forum, missing a day’s work or a moment of leisure, or even having to see the other party again, such circumstances must be objectively respected. The conflict, as a rule, transposes the object placed in the file. Duly informed, one should honor the solution found by those involved.

e) Paraphrasing (or recontextualization): its scope is to exclude emotional burden of possible placement of those involved. It is common for those involved to dramatically address the legal issue faced, which may offend the other, without effectively contributing to the solution of the impasse. The terms of the course must be understood objectively and analyzed from another perspective (not subjective).

f) common interests: the conciliator must start from common interests existing among those involved. In this wake, when discussing a child support for example, one wanting to reduce it and the other wanting to increase it there is the common interest of well-being of children, and from there the reasoning for the construction of a positive solution must be based.

g) Absence of haste: it is an elementary premise that the hearings have sufficient intervals for their realization. There can be no rush in the search for conciliation between the parties, there is a necessary time for the maturation of the proposals and reflections of those involved on the impasses placed. The parties and lawyers usually find themselves in the hearing very tense, it is necessary to break down these barriers (e.g. arms crossed, “tied face” etc.). Often a simple offer of a coffee or a glass of water, already minimizes belligerence, and those involved become more willing to constructive conversations, which is fundamental to find a solution to the controversy.

h) Summary of the negotiations: in the end, there is a full-term reduction of what has been achieved, excluding what is not necessary for the case, those involved undertake to comply with what has been agreed, then the agreement is approved by the competent authority. There is the possibility of concluding agreements in various spheres, such as administrative, judicial, extrajudicial (Public Defender’s Office, Public Prosecutor’s Office, etc.).

It is essential to be trained professionals to apply the techniques mentioned, not only in the legal sphere, that is, technical knowledge of the applicable legal standard, but also in the field of psychology, that is, an interdisciplinary professional, resilient, ready to adapt to what was quickly placed, acting in true dialogue of sources. Psychology is applied from the physical construction of the sites to the eventual preparation of those involved for the transactional solution, with the important subsequent follow-up. Everything communicates intensely. The law is only one side of the dynamic in this case, there are several others that must be observed, acting in a network, in constant constructivist dialogue.

Arbitration, in turn, ordinary, involves large economic groups, it is regulated, among others, mostly by Law No. 9,307/96. It must involve capable agents, providing themselves to resolve disputes over the property rights available. Arbitration may be in come and shall be lawless or equity[3], as adjusted between the parties before or after the dispute. Law No. 13,129/15 expressly authorized the possibility of arbitration within the public authorities. There has always been great controversy in the application of arbitration in the scope of consumer ism and labor justice, a recent change in the CLT (art. 507-Law No. 13,467/17), with regard to labor justice, and majority jurisprudence, has admitted the institute in both areas[4], subject to legal requirements. Litigants can choose the applicable rules of law, provided that there is no violation of good customs and public order (BRASIL, 1996. Law No. 9,307 art. 2, §1; BRASIL, 2017).

Furthermore, those involved may agree that the arbitration takes place on the basis of the general principles of law, the customs and the international rules of trade. There are hundreds of arbitration chambers, with their own regiments, specific costs and expenses, making it an important niche for elite advocacy (ARBIPEDIA, s.d).

Note, all appropriate forms of conflict resolution involve psychological factors that determine their proposition and solution, verifying true dialogue of disciplines, not only legal, but from other branches. The appropriate forms are also determinant for dejudicialization, in search of a new way of “doing justice”, much more economical, intelligent, practical and disruptive, dejudicializing controversies that can be pacified in other social spheres.

3. RESTORATIVE JUSTICE

Restorative Justice opposes the Retaxing Justice, or even distributive justice[5], typical of western models of justice, especially civil law. The leading case[6] occurred in the city of Elmira, Ontario, Canada, in 1974, when two young men, who vandalized 22 homes in their own neighborhood after the sentence, began to attend the routine of those families to check/know the disorders and consequences of their acts. Two servers made possible the visits that, despite some resistance from the local magistrate, ended up occurring, being recorded in notes (ZEHR, 2008).

The primary origin of Restorative Justice stems from the wheels carried out in indigenous communities, where conflict resolution was sought through the restoration of peace among those involved. The key words of Restorative Justice are: love, belonging and balance, its fundamental values are: encounter, reparation, reintegration and inclusion. Restorative Justice has been practiced in countries such as Canada, USA, UK and New Zealand since the 1970s and 1980s, landing in Brazil in the 1990s (GRECCO et al., 2014).

The philosophical current (Paul-Michel Foucault, Friedrich Nietzsche and Bento Espinosa among others) point to the alliance between Restorative Justice and Practical Philosophy, allowing the investigation of the various ways of constructing the just, as it takes place in human relations. Thus, far beyond a practical methodology, marked by technique, Restorative Justice is a philosophical exercise that brings with it the expansion of knowledge about oneanother and about others, about the pains and sufferings promoted by the encounter and its affections; is an invitation to the invention of an ethical way of life that confronts the values of a hegemonic culture (GRECCO et al., 2014).

The psychological basis was at the behest of Eglash (1977, apud FABRIS; PERLIN, 2015), who for many years worked with inmates in prisons in the United States, conducting a wide study on the deleterious effects of criminal retribution and its low practical effectiveness. The article called Beyond Restitution: Creative Restitution, published in a compilation paper: Restitution in Criminal Justice is considered the psychological framework of the restorative theme.

Currently, the normative bases of restorative justice are in resolution no. 225/16 of the National Council of Justice and resolution no. 2002/2012, before resolutions no. 26/1999 and 14/2000 of the United Nations. Then Resolution No. 225/16 the CNJ published Resolution No. 300/2019, setting a deadline of 180 days for the Courts of the country to present in the interregnum of 180 days the plan for the implementation, dissemination and expansion of the Restorative, given the strong resistance found in some Courts.

The resolution brings important conceptual goals applicable to Restorative Justice, timely transcription:

Art. 1º. Restorative Justice is constituted as an orderly and systemic set of principles, methods, techniques and own activities, which aims to raise awareness about the relational, institutional and social factors motivating conflicts and violence, and through which conflicts that generate damage, concrete or abstract, are solved in a structured way in the following way:

I – it is necessary the participation of the offending person, and, where any, of the victim, as well as their families and others involved in the harmful fact, with the presence of representatives of the community directly or indirectly affected by the fact and one or more restorative facilitators;

II – the restorative practices will be coordinated by restorative facilitators trained in self-compositionic and consensual techniques of conflict resolution proper to the Restorative Justice, and may be a court servant, public agent, volunteer or appointed by partner entities;

III – restorative practices will focus on meeting the needs of all involved, the active accountability of those who contributed directly or indirectly to the occurrence of the harmful event and the empowerment of the community, highlighting the need to repair the damage and the recomposition of the social fabric broken by the conflict and its implications for the future.

Next, it works on principles that are incidents and legitimized the request for the application of restorative justice in the case-law:

Art. 2. These are principles that guide restorative justice: co-responsibility, compensation for damages, meeting the needs of all involved, informality, willingness, impartiality, participation, empowerment, consensus, confidentiality, speed and urbanity

(…)

Art. 7º. For the purposes of judicial restorative care of the situations referred to in the caput of art. 1 of this Resolution, procedures and judicial proceedings may be referred, at any stage of its processing, by the judge, of office or at the request of the Public Prosecutor’s Office, the Public Defender’s Office, the parties, its Lawyers and the Technical Sectors of Psychology and Social Work.

Single paragraph. The police authority may suggest, in the Detailed Term or in the Report of the Police Inquiry, the referral of the conflict to the restorative procedure.

(our griffin)

The idea is to remove institutional revenge, or even the so-called democratically constituted institutions for this purpose, restoring the ethical and moral bonds between those involved, lost due to the rampant conflict. There are several municipalities in Brazil that have laws that specifically deal with Restorative Justice, such as the Municipalities of Barueri (Law No. 1,948/10), São José do Rio Preto (Law No. 12,977/18), Campinas (Law No. 15846/19), Santos (Law No. 3371/17), among others.

The main object of the procedural dispute is altered, that is, it seeks to resolve emotional and material damage suffered, placing the aggressor and victim face-to-face so that both reassess their own conducts and truths. There is a rescue of ethics among the litigants. It is understood that affection and knowledge about the other can lead to a situation of empathy with the fact that has occurred, that is, it becomes justifiable from a certain perspective. It is the typical case of family theft, where the agent subtracts something from other mobile to satiate their immediate hunger, often is recognized the atypicality of the conduct due to the circumstances verified (GRECCO et al., 2014).

The Facilitator, a fundamental figure in the restorative circle, is considered a builder of new contexts, a participatory companion of the group or team on a temporary and temporary basis, a builder of possibilities of self-organization of the group throughout the restorative process. Its posture represents the intertwining between emotions, theoretical knowledge and methodologies aimed at collaboration and creating synergy conducive to the emergence of new possibilities of solutions and relationships, having as main focus the humanization of relationships (BRASIL, 2016).

At this point will be detailed a little more of the practice of the restorative circle. There are the objects of center of wheel or circle, usually the center is formed collaboratively, that is, the participants bring objects that they understand relevant to that moment. As a rule, the Facilitator brings a plan, which represents the community and indigenous origins of the circle, and literature, books, on the restorative theme. Below the central objects is placed a carpet or other circular object that “binds” (joins) these collaborations. The central objects also act as a refuge for the eyes, so that the participants are not obliged and constantly look at each other, if they do not want or succeed, for any reason. There is also the “talking stick” that is passed through the circle, an opportunity where the person can express himself and the other has the opportunity to listen. Communication is fundamental in circles. No one is obliged to speak, can just pass the stick. The stick can be a rubber ball or any other object, it represents an invisible line of speech that is forming among those involved. (GRECCO et al., 2014).

There’s the precircle, the circle itself and the post-circle. In the first, there is the possibility of application of restorative justice, while in the second there is its effective practice, already in the third, there is an evaluation of what was agreed and what was effectively achieved, eventually setting new guidelines and targets, in case of failure. There is no closed formula, it is not a circumscribed method, but rather a dialogue wheel with ample possibilities of confection (GRECCO et al., 2014).

At the beginning and end of the circles or wheels, there is the possibility of an opening ceremony and another closing of the meeting. There is no given time for the performance of the wheels, although it is recommended to work with parameters so that there is no unnecessary emotional strain of those involved. As already said, there is no Cartesian metric, the opening or closing can be from an ecumenic prayer, a collective hug or a simple selfie (GRECCO et al., 2014).

4. DIALOGUES: POSSIBILITIES, APPLICABILITY AND LIMITS OF THE APPROPRIATE METHODS OF CONFLICT RESOLUTION

From all that has been studied so far, there is the wide application of the appropriate (and no longer alternative) methods of conflict resolution in the day-to-day life of modern society. The methods bring to the world of law true dialogue with various areas of knowledge. The methods should be applied extensively in disputes involving childhood and youth, the elderly, women and vulnerable groups in general.

There are several limits to alternative methods of conflict resolution. There is a legal limit, that is, there are cases where the law expressly disauthorizes the consensual solution, as in the case involving interests of minors (e.g., divorce, adoption, etc.), among many others.

There are cultural barriers. At this point, there is a relevant explanation. Often the ordinary citizen is not even aware of these methods, of their effectiveness and their legality, preferring what the “judge says”, as something safer. There are also economic barriers. Not infrequently, the Procedural Actors, including the Lawyer and the Public Prosecutor’s Office, stimulate litigation in the judiciary, because it is a safe source of income, demonstrating “virility” in defending the interest of the “Client”, which is seen by “common sense” as something virtuous.

There are also political and corporate boundaries. The members of the Judiciary see the process and the “say the right” as the prerogative of the Judiciary, supposedly impartial and better prepared for the solution of the dispute. In this box, one should also place the Parquet, captain of extreme legality, fruitful in incarcerated vulnerable groups, especially low-income young people (low-income black men and women), structurally illiterate and mentally handicapped. In practice, what we see is a judiciary overwhelmed with work, resolving conflicts in a shallow way and with low social effectiveness. Early guardianship (or injunctions) becomes the main objective of the demand, to try to safeguard the protection of the law.

For everything else, one can see legal, economic, cultural, political and corporate limits. Such barriers must be overcome through rights education, which must accompany school, professional and personal training.

5. CONCLUSION

As pointed out in the introduction, this article has as its central axis the appropriate methods of conflict resolution (conciliation, mediation and arbitration), as well as restorative justice. In this tuning point, the objective was to respond to what can be improved in the structural, procedural and humanitarian aspects, for the purpose of expanding its practical effects.

The judiciary needs to be reread in the light of the appropriate methods of conflict resolution. It is urgent to re-read the management of its end activity, that is, the judicial provision. What service should we really provide to the population? There is no reason why numerous conflicts involving children, adolescents, families, businesses, etc. are charged with a court order imposed by an impartial third party. There is no effective resolution, not ina few times, the sentence exarada does not satisfy the interest of either party. There are numerous resources, a lot of emotional and financial strain to achieve a result of questionable technical and practical effectiveness.

It is necessary to make room for the parties, true actors of the conflict, so that they seek, through the various alternative methods to the solution of controversy, the best way to solve the impasse placed. There is no reason for the monopoly of justice, justice, as already said, is a relative concept with inconsistent meaning. It is of paramount importance that judicial paternalism be replaced by networking, when necessary, moving away from the figure of the Judge who is giving “scolding” in the parties, lawyers, etc., either during the demand, or in specific acts, as in hearings, or through demonstrations. This is a cycle of unsustainable structural institutional violence, very dear to public coffers, without any practical and emotionally irrational effectiveness.

Throughout this text, it was noted that multiport justice brings several methods of conflict resolution beyond that performed by the Judiciary. Within the judiciary it is possible to apply all of them before or during the process, but the best would be that the judiciary be used only in conflicts in which there is no possibility of consensus between the parties.

The figures of the Lawyer[7], Public Defender[8], Public Prosecutor[9] and Judge[10], characters typical of an intense litigation, historically marked by constant struggle and victory at any price, assume special relevance in this new “legal education” for Multiport Justice in true dialogue of sources. Multiportas Justice can only grow and develop if these important figures recognize the social importance of these methods, leaving aside corporate, political and economic interests (e.g., contractual fees, succumbs, ad exitum, etc.), which often dictate the dynamics of the filing of the judicial demand.

Restorative Justice represents the future of the dynamics of conflict, in search of social pacification and the long-adwed procedural speed (Art. 5, LXXVIII, CF/88). Finally, it is advocated, the application of Restorative Justice for conflicts involving the area of childhood and youth, school impasses, condominiums, corporate or not associative, criminal, where there is no violence and serious threat, and labor, as well as in the public sphere. Endless are the possibilities. It is also possible to concomitance the restorative process in conjunction with the traditional process, since, often, before the legal system, the judicial or administrative process are inexible, which in itself is a nonsense.

The broad dialogue between the branches of law and other disciplines (psychology, anthropology, etc.) it should be stimulated and prestigious, seeking solutions from the ones involved and not from the traditional justice system.

REFERENCES

ARBIPEDIA, Câmaras arbitrais: regulamentos, custas e listas de árbitros. s.d. Disponível em: <https://www.arbipedia.com/conteudo-exclusivo/camaras-arbitrais-brasileiras.html>.

BEDAQUE, J. R. dos S. Direito e processo. 6ª edição. São Paulo: Malheiros, 2011.

BRASIL. CONSTITUIÇÃO DA REPÚBLICA FEDERATIVA DO BRASIL DE 1988. Disponível em: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm>.

BRASIL. RESOLUÇÃO 225, DE 31 DE MAIO DE 2016. Disponível em: <https://atos.cnj.jus.br/files/resolucao_225_31052016_02062016161414.pdf>.

BRASIL. LEI Nº 13.467, DE 13 DE JULHO DE 2017. Disponível em: <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/l13467.htm>.

BRASIL. LEI Nº 13.105, DE 16 DE MARÇO DE 2015. Disponível em: <http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm>.

BRASIL. LEI Nº 9.307, DE 23 DE SETEMBRO DE 1996. Disponível em: <http://www.planalto.gov.br/ccivil_03/leis/l9307.htm>.

BREITMAN, S.; PORTO, A. C. Mediação familiar: uma intervenção em busca da paz. Porto Alegre: Criação Humana. 2001.

CAPPELLETTI, M.; GARTH, B. Acesso à Justiça. Tradução de Ellen Gracie Northfleet. Editora: Fabris, Porto Alegre, 1988.

FABRIS, G. M.; PERLIN, E. J. Justiça Restaurativa e sua possível aplicabilidade no Brasil. 3° SIMPÓSIO, COOPEX. 2015. Disponível em: <https://www.fag.edu.br/uplo ad/contemporaneidade/anais/55954ab92e172.pdf>. Acesso em: 27/04/21.

FOUCAULT, M. A Verdade e as Formas Jurídicas. Rio de Janeiro: Nau, 2013.

GRECCO, A.; et al. Justiça Restaurativa em ação: práticas e reflexões. São Paulo: Dash, 2014.

KELSEN, H. O que é Justiça? a justiça, o direito e a política no espelho da ciência. Tradução: Luís Carlos Borges, 3ª edição. São Paulo: Martins Fontes, 2001.

ZEHR, H. Trocando as Lentes. São Paulo: Palas Athena, 2008.

APPENDIX- REFERENCE FOOTNOTE

3. There is no univocal meaning for the term equity, a significant part of the doctrine argues that it is the application of justice in the specific case, others, the application of reasonableness and proportionality in the specific case. As can be seen, it is the substitution of a general term by two other general terms without any objective beacon for the operator of the standard.

4. REsp 659631/BA (Labor Law) and REsp 1854483/GO (Consumer Law)

5. These concepts are based on the doctrines of Plato and Aristotle.

6. Driver case or reference.

7. Lawyer should be understood as public lawyers (municipal, state, federal, private (OABs), datives etc.

8. Public Prosecutor’s Office should be understood within the entire Federal and State Prosecutor’s Office, with its respective hierarchy.

9. Public Defender’s Office should be understood within the entire Federal and State Public Defender’s Office, with its respective hierarchy.

10. Judge should be understood as the entire Federal and State Judiciary, including Judges, Presidents and Corrections (CNJ etc.).

[1] Master’s degree in Law from PUC-SP, Specialist in Administrative Law from PUC-SP, Specialist in Private Law from the Paulista School of The Judiciary, Bachelor of Law from PUC-SP.

[2] Doctorate in Law. Advisor.

Submitted: July, 2021.

Approved: August, 2021.

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