Overview of approved precedents
In order to encourage the use of out-of-court mechanisms for dispute resolution, the Federal Judiciary Board (CJF) held a Working Group for the Prevention and Out-of-Court Dispute Resolution in the second half of 2021.
Overview of approved precedents
Among the 143 precedents approved, there is a clear recognition that social and environmental, collective, and complex disputes can and should be solved by more adequate methods than the usual state adjudication. This is stated in the following two precedents.
It is recommended that studies and research be conducted, within the scope of the Judiciary, in partnership with universities and professionals with expertise in the environmental area, for the preparation of guidelines aimed at the use of appropriate methods of solving complex environmental disputes, without prejudice to any specialization of CEJUSCs in environmental matters.
The use of mediation is recommended for the resolution of social and environmental disputes, notably to make viable, in the manner set forth in article 3, paragraph 2, of the Mediation Law, access to justice and the satisfaction of waivable and unwaivable transactable rights, including preventive, repressive, and restorative measures for damages to the environment and the public.
The CJF's position in this regard is significant. For those who work in the field, it is evident that judicial litigation alone is usually not enough to resolve disputes of this magnitude.
Going beyond the provisions of precedent 225, it will not always be necessary to limit disputes to mediation, which will not always be the ideal means. If the intention is to seek a more adequate method to resolve a dispute, there is no reason to stick to just one mechanism. It is possible to combine mediation with other mechanisms and opt for a procedure that ensures access to justice and fundamental rights and the satisfaction of waivable and non-waivable transactable rights.
Reparation programmes have been a growing trend in Brazil over the past few years. They involve designing a customised procedure for each specific case through the combination of several mechanisms (eg, mediation, conciliation and negotiation).
In addition to being able to quickly deliver solutions that are better suited to the reality of those who have suffered damage, reparation programmes increase the chances of maintaining business. They also involve the community and make it an active part of the reparation process, thereby including the social component in the equation and taking the affected people out of the condition of mere spectators in the resolution of their disputes.
They are, in short, an organised, coordinated procedure that is focused on obtaining full reparation in an effective and expeditious manner. The amounts involved in the process are directed to the reparation itself, and not to expenses relating to excessive judicialisation and/or exacerbated bureaucracy. To this end, dialogue is sought with the most diverse of stakeholders, such as:
- institutions of the judiciary;
- the affected parties;
- advisors; and
- regulatory agencies.
As these stakeholders pursue the same result (ie, full and expeditious reparation), all should seek a constructive solution, considering technical, legal, social and economic issues.
The heavy rains that reached record levels in January 2022 and caused social and environmental damage, especially in the state of Minas Gerais, show that dialogue between the various stakeholders is even more necessary now than in the past. The CJF's guidance, in providing incentives for out-of-court resolution of complex environmental disputes, is extremely important – especially considering the State Dam Safety Policy instituted in 2021, which increased the demand for faster and more assertive responses to environmental crises.
For further information on this topic please contact Paulo Eduardo Leite Marino, Ariana Anfe or Maria De Sá Fortes Dória at Machado Meyer Advogados by telephone (+55 11 3150 7000) or email ([email protected], [email protected] or [email protected]). The Machado Meyer Advogados website can be accessed at www.machadomeyer.com.