Conciliation and mediation in social security law

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ORIGINAL ARTICLE 

FREITAS, Neusa Aparecida de Morais [1], SANTOS, Lucineia Rosa Dos [2], REIS, Elisa Da Penha De Melo Romano [3], GONÇALVES, Ionas Deda [4]

FREITAS, Neusa Aparecida de Morais. Et al. Conciliation and mediation in social security law. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 12, Vol. 18, pp. 05-21. December 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/social-security-law

SUMMARY

This article aims to study the ways in which judicial measures are implemented, from the perspective of mediation procedures linked to civil and social security proceedings. It will be analyzed the effectiveness of the methods of solutions of consensual conflicts in the Field of Social Security Law, supporting the dogmaticof the procedural legal phenomenon, based on the constitutional dictates and the guiding principles of the Mediation Law, and with special concern in the new infraconstitutional scenario brought with the 2015 CPC edition.

Keywords: Conciliation, mediation, Law 13.140/2015, Law 12.154/2009, Social Security Actions.

1. INTRODUCTION

Conciliation and mediation are of fundamental importance to the procedural system, and jurisdictional activities and alternative means of dispute settlement are used in a less exhausting manner for the parties.

Being alternative means used to relieve the judicial bodies and considered as an appropriate instrument for the realization of the principle of reasonable duration of the process, with measures that contributes to greater procedural speed.

With highlights in the new legal diplomas, which discipline the theme such as Law No. 13,105/2015 (new Code of Civil Procedure) and Law No. 13,140/2015 (Mediation Law), aiming to reduce the judicialization of conflicts, in line with the Judiciary.

Having as a fundamental topic, which is intended to identify the main procedural rules on conciliation and mediation brought by the New CPC and the Mediation Law that can impact consensual practice in social security actions.

Having the need to guarantee the fundamental and constitutional precepts of the process, simultaneously with due process, which requires its fair form, based on the collaboration of the actors of the process and normative weighting, analyzing the concrete case, in search of justice.

2. IMPACT OF CONCILIATION AND MEDIATION ON SOCIAL SECURITY ACTIONS

The impact of conciliation and mediation on Social Security Actions has been a major milestone in the judicial sphere, and is at first based on a means of guaranteeing the right to social security of the insured. Its conciliatory means as a consensual means of resolving conflicts before its vast procedural demand, which contributes to the great procedural demand and in reducing procedural delay with the protection of constitutional principles. Thus, managing to solve greater numbers of cases, with more agility and effectiveness before the judiciary.

With the great demand of judicial proceedings, the application of the measure of hearings with conciliators and mediators was a great improvement in human relations and citizenship, which proved to be a great milestone in access to justice, still increasing ly leveraging several lawsuits in millions of actions.

With the advance of hearings by conciliators and mediators, we have a large number of agreements concluded between the parties to conflicts, which demonstrate that conciliation, in a way, ends up bringing together citizens in conflict, involving all kinds of citizens, companies and various institutions, making each party compose and understand the importance of the opposing party , and also understand the role of the agent claiming transformations and supervision of the public, social and collective good.

In the cases of social security actions, conciliation has been extending more and more, being a practice already established, especially in the cases submitted to the Federal Special Courts, which is an absolutely competent body to judge the federal court’s cases of up to 60 (sixty) minimum wages.

In this sense, we have that conciliation and mediation have been brought by the New CPC and the Mediation Law, which is of fundamental importance for the procedural rules that came to impact consensual practice in the various lawsuits, being also applied in social security actions.

Through the set of knowledge developed in the field of mediation, a positive influence was observed on judicial conciliation, which also totally favored the improvement of this practice, with the effectiveness of the judicial system and the effectiveness of social security rights, but not corresponding to constitutional principles, given the various situations and doubts raised in relation to the parties involved.

Having as part the National Institute of Social Security – INSS, which presents a picture of several doubts hovering over the bases and criteria that are celebrated, since the social security conciliation hearings discuss the social security rights that are constitutional rights.

Thus, there are several understandings in relation to conciliation in this context, as a way of deconstructing social security law, since the agreement in the vast majority seeks, in a way, to reduce expenses considering the conciliation proposal, which is a lower value payment, trying to limit the amount due to the limit of the Federal Special Court.

Proving that the author party was being, in a way, influenced to reconcile and even to accept the agreement stipulated in a conciliation hearing, and by not having the same financial and economic conditions to support the time of the judicial process, ends up being encouraged by conciliation.

Thus, the studies in relation to the agreements concluded in the context of social security actions, which the author ends up renouncing his social security rights, leaving the National Institute of Social Security – INSS supported by the advantages it has as a litigant and the acceptance designated to the insured person who receives the amount offered not to run the risk of delay in the judicial demand, not supporting such situation , which could further burden his wait for the benefit, thus accepting the proposal at a conciliation hearing.

In this situation it is clear that the system of the implementation of conciliation hearings in social security actions, is still a method that should be analyzed and studied because there is still a misstep between respect for social security constitutional rights and the insured. It is also necessary to verify whether the method used is really appropriate to the effective solution of these demands, and it should be sought an in-depth analysis so as not to incur misunderstandings, nor deprive the constitutional rights of the insured.

3. DIFFERENT FIELDS OF INCIDENCE IN THE NEW CPC, IN LAW 13.140/2015 AND IN LAW 12.154/2009

As for the different fields of incidence of CPC/2015 and Law No. 13,140/2015, we can say that the two diplomas have different fields of incidence, while the Novo CPC regulates mediation and conciliation exercised in the judicial sphere, and the Mediation Law excludes conciliation and regulates only mediation in the judicial and extrajudicial spheres.

Both diplomas have negotiation techniques provided for as an instrument for composition between the parties, which have been duly recognized. Since the legal diplomas collaborate to discipline the hearings of conciliations and mediations, bringing the parties a consensus, reaching a resolution of the conflict with agreements concluded between the parties, in the judicial or extrajudicial sphere.

In any case, the CPC/2015 presented a normative differentiation between the two words. Mediation applies preferably in cases that present a previous link between the parties, aiming at restoring communication between them, in order to allow them, on their own, the scope of consensual solutions capable of generating mutual benefits, while conciliation comprises, preferably, cases that do not present a previous link between people, and it is up to the conciliator to suggest solutions for the litigation

And we have in relation to the same theme Law No. 13,140, of June 26, 2015, which provides mediation, in its Article 1, as a means of resolving conflicts between individuals and with regard to the self-composition of disputes within the public administration. In which, still in its single paragraph, it considers mediation as a technical activity that is performed by an impartial third party without decision-making power, which, being chosen or accepted by the parties, has the purpose of assisting and stimulating them in the identification and development of consensual solutions to the controversy (BRASIL, 2015).

Thus, in a broader sense, the judicial system became more imperative in search of a plan beyond the formal, seeking in other ways the resolution of various conflicts, thus breaking the traditional view that the judicial provision could only be given by the Judge from the judgment, of a decree imposed on the parties, starting to be defended in other ways through conciliation and mediation in order to promote the culture aimed at social peace , as well as unburdening the judicial scope.

In cases of consensual conflict solutions, there are several advantages, both for the parties and for the legal system, which are usually faster and because it has been agreed between the parties, are fulfilled more effectively than those imposed by the judiciary. We also have discussions reflecting on Resolution No. 125 of 2010 of the National Council of Justice (CNJ), which instituted the National Judicial Policy for the appropriate treatment of conflicts of interest within the judiciary (BRASIL, 2010).

The concept of access to justice is no longer treated by the Resolution as mere access to judicial bodies, and is therefore considered as an access to the just legal order. Thus, emphasizing the right of jurisdictions to resolve the conflicts of interest presented to them, through the most appropriate means, according to their nature and specificity, allowing the use of conciliation and mediation, and, moreover, the dissemination of culture aimed at social peace. Presenting guidelines for a paradigmatic change in the solution of judicial conflicts.

Being found that conciliation enables various types of approach, it is verified that it is the most extensive in all aspects and its dimensions of the dispute, reconciling the most prolonged and complex cases and relationships, and providing the possibility of restoring the relationships between the parties through the establishment of dialogue between them so that they reach an understanding , with the intervention of the conciliator.

Thus, in relation to the federal authority we have that the National Institute of Social Security – INSS is responsible for social security, making the reconciliations in order to transpose and obtain in the agreements the payment of less than that which the insured would be entitled to the end of the process. Conciliation is a desirable way “when the principle of social utility preponders, that is, where the State understands it is better to end the next deal with its costs, even if there is doubt about the issue of fact or law” (CABRAL, 2014).

In this way, we have that the principle constitutes the duty to seek conciliation when possible and feasible, while the public interest believes that the collectivity, a municipality or public body is more important. Thus, the collectivity has an interest in complying with the principles set out in the constitutional text, as well as there should be no linking of social security revenues to the expenses of a process that can be avoided or reduced.

4. ARTICLE 334, CAPUT OF THE CPC – OF THE CONCILIATION OR MEDIATION HEARING

The politics of the culture of peace is inscarnated in the preamble to the federal constitution of 1988[5], in which a just decision is constructed from the dialogue of the parties for the peaceful settlement of controversies.

It is in this context that Resolution No. 125/2010 of the National Council of Justice (CNJ), which had on the “National Judicial Policy for the Appropriate Treatment of Conflicts of Interest within the judiciary” contributed, above all, to an important advance in the institutionalization of mediation and conciliation, in addition to the systematization and improvement of consensual practices. The Resolution started from the premise that consensual methods are a gateway to full justice.

Among the innovations brought by the CPC/2015, we welcome the solutions adopted in conciliation and mediation, which essentially corresponds to that established in Article 6 of the CPC, which corresponds to the principle of cooperation that permeates the entire civil procedural system, by the application of the mechanisms of simplification and stimulation of the procedure by the judge, which guarantee the fair composition of the dispute in a reasonable time (BRASIL, 2015).

One of the mechanisms for the settlement of the dispute, through conciliation or mediation, now expressly provided for by Article 334, Caput of the CPC, comes from the premise of article 27 and 46 of Law 13.140/2015, on mediation as a means of conflict resolution to reach self-composition within the public administration.

For José Maria Câmara Junior, the New Code anticipates the preliminary hearing for the moment that follows the admissibility of the petition, aiming to enable conciliation or mediation. The ratio legis wants to allow better management, economics and effectiveness of the judicial protection to be provided.[6]

Minister Marco Bruzzi is an enthusiast of the mechanism of conflict resolution, such as conciliation and mediation, for him, the agreement gives another meaning to the role of the judiciary and dismisses the idea that for the conflict there can only be one correct solution: that of the magistrate. In self-composition there may be several correct and legitimate answers to the same question, and it is up to the parties to build the solution. Criticism of the argument that the conciliation or mediation hearing, required of the new CPC, may be dismissed by the magistrate for the sake of procedural speed or for lack of mediators or conciliators. “I think this will have a very serious risk of procedural nullity. Because you’re not just making a mistake where the rest of the process can make the mistake. No, you’re creating a procedure that’s not foreseen in [7]the CPC.”

The solution of the disputes is present in our legal system in its constitutionality. Consequently, conciliation and/or mediation is a form of final dispute settlement by the agreement of will between the parties involved in the conflict of interest. Understanding that mediation can be used in any controversy, judicial or extrajudicial, differentiating at this point, the available rights (art. 3 of Law 13.140/2015) in which the parties can dispose and transpose.

This understanding is appropriate in any kind of conflict, especially in those that another party is state-owned.

Law 13. 105/2015 covers provisions on the mediation of judicial disputes or not, and on the self-composition of conflicts within the public administration.

The mediation law stimulates the self-composition of conflicts involving direct or indirect public administration bodies, of all federal entities, and these practices are indispensable to the reasonable duration of proceedings and to reduce the high costs of litigation involving public entities (VASCONCELOS, 2017).

It states in Article 1: “This Law provides for mediation as a means of resolving disputes between individuals and on the self-composition of conflicts within the scope of public administration.”

It is extracted from the CPC/2015, the perfect harmony with the mediation law (art. 32), established in Article 174:

The Union, the States, the Federal District and the Municipalities will create mediation and conciliation chambers, with the attributions related to consensual resolution of conflicts in the administrative sphere, such as:

I – Resolve conflicts involving public administration bodies and entities;

II- Assess the admissibility of requests for conflict resolution, through conciliation, within the scope of public administration;

III- to promote, when it fits, the conclusion of a conduct adjustment term (BRASIL, 2015).

Continues the CPC/2015 in Article 175: “The provisions of this Section do not exclude other forms of conciliation and out-of-court mediation linked to institutional bodies or carried out through independent professionals, which may be regulated by specific law.”

In the same vein, the Federal Court prestigious the conciliation and/or mediation hearing through Resolution No. 397, which establishes the National Social Security and Conciliation Forum, creating an environment conducive to the interinstitutional debate, at the national level, between the Judiciary and entities related to Social Security, such as, among others, the National Institute of Social Insurance (INSS), the Attorney General of the Union (AGU) and the Public Defender’s Office of the Union (DPU).[8]

It should be noted that the federative entities are the great litigants, and at the other end is the particular: the insured who wants to receive a certain social security benefit or the borrower, who wants to review their housing financing (SFH – Housing Financial System).

Carlos Eduardo de Vasconcelos brings the lessons of Ada Pellegrini Grinover, where he proposes the development of a

“conciliatory justice” in civil proceedings, according to three principles: the functional, which aims to confront the inaccessibility, the slowness and the cost of the judiciary, in order to require the implementation of a judicial policy of mediation and conciliation; the social function, which consists of social pacification, which is generally not obtained by the sentence, which is limited to determining, authoritatively, the rule for the specific case, summing up on the solution of the portion of the case brought to court, without the possibility of pacifying the sociological course; and the political foundation, consistent in popular participation in the administration of justice, represented by it, at the same time, an instrument of control, presenting a means of direct popular intervention through the institutional channels of conciliation and mediation (VASCONCELOS, 2017, p.85).

That the scope of social peace in the solution of conflicts of interest by the methods of conciliation, mediation and in the satisfaction of the current expectations of the parties, the pacification of disputes is not only carried out by judgment, in which one loses and the other wins; this does not mean to say that I do not believe in the solution of the dispute by a monocratic Judge or a collegiate court, but in other forms of conflict resolution more dynamic and close to social relations, bringing significant results in the reduction of judicial demands.

5. MANDATORY, HOLDING AND CONSENSUAL HEARING

The Mediation Law and the Code of Civil Procedure, with regard to consensual means of dispute settlement, except for the Code of Civil Procedure, allow the parties to make the option of the preliminary hearing by consensus (Art. 319, VII CPC/2015), and the Mediation Law provides as mandatory the first mediation meeting when there is a mediation clause agreed by the parties (Art. 2, §1). Which law should prevail in the face of this divergence?

The solution is given by CPC/2015 in art. 1.045 CPC/2015: “§2º. The special provisions of the procedures governed by other laws, to which this code will apply, shall remain in force.”

For Bueno (2017):

But there is some incompatibility between few rules of the new CPC compared to those of the Mediation Law, so that when they conflict, those of the latter should prevail (because it treats a later law, which repeals the previous one, and a specific law that derogates from the generic). Nevertheless, one can speak today of a Brazilian minisystem of consensual methods of judicial settlement of conflicts, formed by Resolution no. 125 CNJ, the CPC and the Mediation Law, in which they do not conflict.

It is presumed that lawyers, parties and those acting for justice, are effectively responsible for complying with the principle of reasonable duration of proceedings and cooperation (Art. 4 and Art. 6 of the CPC), for the consensual settlement of the dispute, through the requirements of the application (Art. 319, VII CPC) in the realization of conciliation or mediation.

Art. 319, VII of CPC/2015 – the author’s choice for the conciliation or mediation hearing or not. “The defendant is no longer cited to respond to the action, but cited to attend a conciliation or mediation hearing, which admit self-composition”

§ 4 of Art. 334 CPC/2015 – The hearing will not be held:

I – If both parties expressly express disinterest in the consensual composition.

II – When self-composition is not admitted – complex and unavailable causes that do not admit transaction.

§ 5 – the plaintiff shall indicate in the application, his disinterest in the self-composition, and the defendant must do so, by petition, submitted 10 days in advance, counted from the date of the hearing.

The mandatory holding of the consensual hearing stems from the constitutional policy, which in the promulgation of the CPC/2015, came to institutionalize as a means of effecting the appropriate means of dispute settlements and the Bandeirante Court has decided in this sense, to give concreteness to the procedural norm. (TJSP, Aggravation of Instrument n. 2259490-76.2016.8.26.0000, Rel. Des. Campos Petroni, 27th Chamber of Private Law, j. 05.04.2017)

Instrument injury. Decision that imposed a fine on aggravating factors, due to the non-attendance to the conciliation hearing, pursuant to Article 334, §8 of the CPC. Insurgency. Inadmissibility. Expresslegal determination for the imposition of the fine, before the unjustified non-attendance to the conciliation hearing. Decision maintained. Motivation of the decision that is adopted as a reason to decide in the Second Degree. Application of Art. 252 of the Rules of Procedure of this Egrégio Court of Justice. Appeal not provided (MEDEIROS NETO, s.d).

It follows from the provisions of the rules on the leading role of the parties in the solution of conflicts consensually (arts. 1st to 6th, 190th and 471), which encourages conciliation and mediation, with the support of an impartial third party, for the promotion of dialogue between the parties, enabling the resignifications of the facts that ensnare the conflict and disarming the spirits, to facilitate understanding in the solutions given by themselves.

The mediation movement permeates the entire civil procedural system, one can replace the belligerent system, and, yes, facilitate access to justice and a fairer solution.

In the Brazilian legal system, as is extracted from Article 2, §3 of the CPC/2015, the will of the legislator is verified: “Conciliation, mediation and other methods of consensual settlement of conflicts should be encouraged by judges, lawyers, public defenders and members of the public prosecutor’s office, including in the course of the judicial process” (BRASIL, 2015).

It is notorious that a sentence does not pacify the parties. The State Judge had exercised a decision that often departs in enforcement proceedings with coercive measures in the search for assets for the fulfillment of the sentence, which leads to further perpetuato remit the conflict.

Society is highly litigant, and this was the most widely used means for conflict resolutions, so much so that the nature of lide in the most classical conception (Carnelutti) corresponds to a conflict of interest qualified by a resisted claim. It is the essential core of a civil judicial process, which aims to resolve the conflict presented before the court.

It should be noted that the conflict is in human relations, and the parties to file a lawsuit further aggravate the situation, which can lead to an escalation of conflict and a degradation of interpersonal relationships, but if lawyers have the mechanisms of mediation in the process, it has the key to the pacification of conflicts. The well-being of citizenship among people is not conceived if there is no state of peace. And peace is linked in culture, which has been built by lawyers, conciliators, mediators and the Judge.

Rui Barbosa already warned, in the prayer of the young men, that “delayed justice is not justice, but clamorous injustice”.

Judicial delay, lengthy justice and the eternization of demands are apparently pejorative expressions, often used to demonstrate widespread dissatisfaction with the slowness of judicial provision. “More benign or less negative have already been put to define them: pace of litigation in the time or time of processing a cause.” (DELGADO, 2003, p. 65)

It is a paradigm shift and Cássio teaches that

It is an arduous task for all law-a-seators to encourage the use of alternative methods of conflict resolution, with particular attention to consensual means. The various rules introduced in CPC/2015, among which the initial hearing of mediation and conciliation (art. 304), added to the edition of Law No. 13,140/2015 has the right to change the current reality that worships the sentence, to accommodate the consensual means. However, the change depends on the effort and will of all those who operate the right to effect the content of the law (BUENO, 2017, p.87).

In this sense, the methods of conflict solutions such as mediation aim to reduce or unburden the burden of processes in the Judiciary, contemplating the approximation of the parties, towards a resolution of conflicts, in a friendly way, through a conversation, with creative ideas and with mutual gains, maintaining the good relationship between them and aiming at a definitive solution.

6. HEARING HELD BY CONCILIADOR OR MEDIATOR, AND THE PARTICIPATION OF THE JUDGE AS JUDGE

Mediation in the Code of Civil Procedure has as main characteristics, to provide decision-making by the parties involved in a given controversy, in which a third person, who does not suffer the effects of pre-judgment, impartial, assists people in conflict, so that they can maintain a productive communication in search of a possible agreement between them, which meets the demand of society for the valorization of the right , citizenship and social welfare.

The conciliator and mediator are figures that gain importance in CPC/2015, receiving special attention from articles 165 to 175.

It emerges from Paragraphs 2 and 3 of Article 165 of the Code of Civil Procedure, a paradigm shift from the code to the condition of instruments for the promotion of pacification (CF/88), and distinguishes the conciliator and the mediator.

§ 2 – The conciliator, who will act preferably in cases where there is no previous link between the parties, may suggest solutions to the dispute, being denied the use of any kind of embarrassment or intimidation for the parties to reconcile.

§ 3 – The mediator, who will act preferably in cases where there is a previous link between the parties, will help interested parties to understand the issues and interests in conflict, so that they can, by restoring communication, identify, by themselves, consensual solutions that generate mutual benefits (BRASIL, 2015).

An important distinction is made between the conciliator and the mediator, being distinguished by the type of conflict, that is, the bond between the parties. In the long-term and permanent legal relations, mediation is characterized, already in the legal relations discontinued the most indicated for the solution of the conflict as the code provides, is conciliation.

Well pondered Kazuo Watanabe saying note in practice, that some conflicts, especially those that happen between two people who have a constant direct contact (the husband and wife, two neighbors, people residing in the same condominium), require a solution technique, such as mediation, for the reason of seeking in these conflicts not only the pacification of the conflicting, but the solution of the conflict , since today’s technique of solution by the judge, through the sentence, is a mere technique of conflict resolution, and not a technique of pacification of conflicts.

If the parties are not pacified, if they do not understand the need to seek a solution of coexistence, that is, if the technique is not that of the pacification of the parties, but that of the solution of conflicts, the same parties will return to the court at other times. Then, there is a difference in the treatment of conflicts between two people in permanent contact and between people who do not know each other.

In a car crash, for example, usually, the problem is solved by paying an indemnity; thus, in this conjecture, the problem is solved by the solution of the conflict, however, in others, in which the parties need a future coexistence, continued, there is much more the need for pacification than a solution to conflict. (DELGADO, 2003)

As can be seen, the role of the conciliator in the conciliation hearing is to guide and point out solutions in an attempt to expedite judicial provision, without any kind of embarrassment or intimidation, so that the parties involved in the conflict resolve the conflict. And the mediator, on the other hand, acts as a facilitator of the dialogue between the parties, so that they can reach the best solution to the problem, without interfering in their decisions, only providing that they talk about the problem and recognize the latent feelings, for the decision-making of themselves.

The powers, duties and responsibility of the judge is one of the most discussed topics in the legal community, because the judge is the main subject of the process, tasked with conducting the process and ensure that all participants in the process behave in line with the forensic tradition. The judge is the one who decides the issues brought by the parties for settlement before the Judiciary. The CPC/2015, prints a change in this procedural legal relationship, with a mainstay in the principle of cooperation, of which all participants must cooperate with each other, seeking, with this, a more balanced process and with more participatory parties. This change emerges from overcoming prejudices.

The CPC assigns the magistrate the duty to pacify conflicts in obtaining the consensual settlement of the disputes, because the system provides that the solution of the judgment of origin and dismissal, resolves the process, but does not end with the conflict, because of this Article 3, §§ 2 and 4 of the code in comment, closes the fundamental principles of civil proceedings , promoting that all professionals should promote consensual solution, including the Judge, and should stimulate conciliation and mediation for the conflicting solution through friendly composition.

Brings to light art. 139, V, CPC/2015:

The judge shall direct the proceedings in accordance with the provisions of this Code, with the following:

V – Promote, at any time, self-composition, preferably with the help of conciliators and judicial mediators (BRASIL, 2015).

In the analysis, the code of civil procedure does not prevent the participation of the judge in the conciliation or mediation hearing in the composition, which is used to stimulate the judge where the parties sign, in direct negotiation, the transaction, which the approval itself, together with the help of conciliators and mediators.

According to Scarpinella,

at the same time that the Code grants all this organization aimed at potentiating the use of conflict resolution methods, it also assigns to the judge the task of promoting self-composition at any time, preferably with the help of conciliators and mediators (BUENO, 2017, p. 220).

It can thus be affirmed that Mediation in the Code of Civil Procedure has as its main characteristics to provide decision-making by the parties involved in a given controversy continues, in which a third person, who does not suffer the effects of pre-judgment, impartial, provides assistance to people in conflict, so that they can maintain a productive communication in search of a possible agreement between them , which meets society’s demand for the valorization of law, citizenship and social well-being.

In this context, the mediation that is permeated in various provisions of the Code of Civil Procedure is justified, enabling people involved in conflicts to find a faster solution to their problems when the judicial process is instituted, and with this, really, obtain the paradigm changes of a transforming and modern justice.

7. THE RESPONSIBILITIES OF THE CONCILIATORY IN SOCIAL SECURITY MEDIATION

The conciliator’s responsibilities in social security mediation, part of the principle in which they must treat those administered and insured as part of the process, being involved as part of the process.

In this sense, we have that in social security actions, the granting of social security benefits filed in the Federal judicial sphere, the social security agency can not fail to recognize a benefit pleaded by an insured person and fail to recognize the same type of benefit to another insured person, which has as objectively identical situation. Thus, in this sense, we have isonomy which constitutes a limitation to discretion in the realization of the agreements concluded with freedom between the parties.

Thus giving a result of a right to the others administered in the same agreement. From another perspective, if the legal situation is completely identical, the Administration should consider the same solution for all cases, since isonomy is imposed on similar situations. For example, we have the situation in which the number of objective variables is lower, such as the calculation of the right to a social security benefit, and it is easier to identify the similarity of the cases. (SOUZA, 2012).

FINAL CONSIDERATIONS

According to the article presented, we came to the conclusion through research in specific legislation and their innovations in the procedural system that brought various consensual means to the center of the conflict resolution scenario.

It can be observed that the consensual sessions have been increasing intensely in the procedural path, significantly altering the figure of the impartial third party that is highlighted by the realization of mediation or conciliation as an auxiliary of justice for the composition of various disputes, as well as in the reduction of the demand and procedural agility applied by the judiciary.

Thus, demonstrating through research that the conciliator acts to ensure isonomy and informed decision to the insured to make or not any agreement, which has total freedom in the agreement between the parties, being only oriented from the situation discussed in the process, without interference from the conciliator.

It is also observed in the research in relation to social security actions, that the author party tends to agree with the proposal of the federative authority, that is, the municipality, since the non-acceptance of the proposal imposed on it will cause great inconvenience, both emotional and financial, since the process will extend without time limit coming to further burden its progress of the process , in which it is almost obliged to accept the proposal so as not to incur the time delay.

Thus, we believe that it would be necessary and urgent to prepare and structure the administrative part of the National Institute of Social Security – INSS, due to the great demand that the municipality is subject and also in relation to the length of the processes. Being possible a better organization of the municipality, so that the insured can be aware of their rights and, through it, enjoy the much dreamed benefit.

And in this understanding with conciliation and agreement between the parties, we see that, even if the benefit is shorter, the waiting time for the effectiveness of the judicial provision is too long, as well as stimulating conciliation, the financial economy is possible in a certain way in the face of the National Institute of Social Security – INSS, due to the conditions for reaching agreement. It may also be concluded that the Public Prosecutor of the municipality only participates in the conciliation if he is sure that the author is entitled to the benefit pleaded, otherwise, if he does not agree with the conciliation, thus lead to an agreement based on reciprocal concessions.

Finally, we come to the conclusion that the approval between the parties is seen with good eyes to the judiciary, considering the will of the parties, which contributes to relieve the judicial demand, and the composition of the dispute, leaving to desire the constitutional right of the insured who ends up renouncing the greater value before the delay in the completion of the process, coming in a certain way to benefit the municipality.

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Anuário da Justiça Brasil, 2017, ainda há Juízes no Brasil, consultor jurídico.

ALVIN, Angélica Arruda et. al. Comentários ao código de processo civil. Coordenação de– 2 ed. São Paulo: Saraiva, 2017

BRASIL. Código de Processo Civil. 2015.

BRASIL. Lei nº 13.140, de 26 de junho de 2015, Disponível em: http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/Lei/L13140.htm , Acesso em 30-06-2020.

BRASIL. Lei nº 12.154, de 23 de dezembro de 2009. Disponível em: http://www.planalto.gov.br/ccivil_03/_Ato2007-2010/2009/Lei/L12154.htm, Acesso em 30-06-2020

BRASIL. Resolução Nº 125 de 29/11/2010, Disponível em: https://atos.cnj.jus.br/atos/detalhar/atos-normativos?documento=156, Acesso em 30-06-2020.

BUENO, C. S. Comentário ao código de processo civil. São Paulo: Saraiva. Vol. 1. 2017.

CABRAL, V. G.; POSSAS FILHO, W. de C. Conciliação e efetividade dos direitos previdenciários no Brasil: paradoxos da atuação judicial do INSS. In: Acesso à justiça I. Organização CONPEDI/UFPB. Florianópolis: CONPEDI, 2014.

DELGADO, José et. al. Mediação: Um projeto inovador. Brasília: Centro de Estudos Judiciários, Conselho da Justiça Federal, CEJ, 2003, pg 56

MEDEIROS NETO, E. M. et. al. Audiência de tentativa de conciliação ou mediação obrigatória? Disponível em: https://www.paulistanomediacao.com.br/copia-jt-homologa-acordo-feito-por- Site Disponível em: http://www.in.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/22795910/do1-2016-05-06-resolucao-n-397-de-4-de-maio-de-2016-22795874, Acesso em 29/06/2020.

SOUZA, L. M. de. Meios consensuais de solução de conflitos envolvendo entes públicos: negociação, mediação e conciliação na esfera administrativa e judicial. Belo Horizonte: Fórum, 2012.

VASCONCELOS, C. E. de. Mediação de conflitos e práticas restaurativas. 5º ed. Rio de Janeiro, Forence, São Paulo: Método, 2017.

APPENDIX – FOOTNOTE REFERENCES

5. We, representatives of the Brazilian people, gathered in a National Constituent Assembly to establish a Democratic State, destined to ensure the exercise of social and individual rights, freedom, security, well-being, development, equality and justice as supreme values of a fraternal, pluralistic and unprejudiced society, founded on social harmony and committed, internally and internationally, to the peaceful settlement of disputes, we promulgate, under the protection of God, the following Constitution of the Federative Republic of Brazil

6. Comments to the code of civil procedure/coordination of Angélica Arruda Alvin…[ et. al.] 2 ed. São Paulo: Saraiva, 2017

7. Yearbook of Justice Brazil 2017, there are still Judges in Brazil, legal advisor, pg.160

8. Available in: http://www.in.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/22795910/do1-2016-05-06-resolucao-n-397-de-4-de-maio-de-2016-22795874, Accessed 29/06/2020.

[1] Master’s student in Social Security Law at the Pontifica Catholic University of São Paulo – PUC-SP. – Postgraduate in Labor Law and Process from Mackenzie Presbyterian University, and Graduated in Law from Padre Anchieta University – UniAnchieta/Jundiaí-SP.

[2] PhD in Human Rights from the aforementioned University. Master’s degree in Labor Law from PUC/SP and Bachelor of Law from the Pontifical Catholic University of São Paulo. Professor at the Pontifical Catholic University in the areas of Human Rights, Human Rights of Refugees and child and adolescent law and gender equality law and racial law. Militant Lawyer in the areas of Labor Law, Social Security Law and the Third Sector.

[3] Master’s degree in Civil Procedural Law from the Pontifica Catholic University of São Paulo – PUC-SP. – Specialization in Civil Procedural Law by the Pontifica Catholic University of São Paulo – PUC-SP, Mediator certified by the Court of Justice of São Paulo, Professor and Coordinator of the Supervised Internship of the Law Course of the Salesian University Center of São Paulo – UNISAL 2005/2011, Guiding professor of the supervised internship of the Cruzeiro do Sul University – UNICSUL 2000/2003, President of the OAB Commission goes to the Faculty of the 125th Subsection Santana – São Paulo Bar Association – 2012/2021, Defender of the 5th Ethics Court of the Brazilian Bar Association – São Paulo Sectional, Graduated in Law from the United Metropolitan College – FMU/SP-199.

[4] Advisor. Doctorate in Law. Master’s degree in law.

Submitted: December, 2020.

Approved: December, 2020.

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