A consensualidade e a administração pública: a autocomposição como método adequado para a solução dos conflitos concernentes aos entes públicos

Abstract

This study aims to analyze and establish the necessary outline for consensual dispute resolution to be employed by the Public Administration. It begins by analyzing the role of the Government as litigant in the midst of the crisis faced by the Brazilian Courts, and goes on to establish the relationship between a court-based culture that pervades the Public Administration and the ineffectiveness of the State in the resolution of conflicts. Secondly, this study presents the current concept of access to justice as access to a fair legal system, ensured by procedural instruments capable of effective social conciliation, and then addresses the consolidation of the multi-door justice system under the Brazilian 2015 Code of Civil Procedure and the creation of non-conflicting environments for dispute resolution. Thirdly, this study moves on to: laying down the principles of conciliatory justice and, –in order to overcome the obstacles for the Treasury to adopt said system –, discussing the development of the concept of Public Administration, from its bureaucratic and authoritarian origins, through its managerial phase, right through to its current meaning, which includes a democratic and consensual notion, arising from the Democratic State of Law enshrined in the Federal Constitution of 1988. This study seeks to answer questions concerning the compatibility of the principles that govern the Public Administration and the application of consensual conflict resolution, be it between public-law entities, or between these and other entities. To avoid trivializing litigation and the court-decision culture, this study argues for a new understanding of the role played by Government litigation. It studies the main institutes and procedures in the Code of Civil Procedure and in the Mediation Act for the resolution of disputes involving the Government, among which the conciliation or mediation hearing, the Administrative Conflict Resolution Chambers and the closed-terms dispute resolution agreements