LIMITAÇÕES PARA UMA ATUAÇÃO TRANSDISCIPLINAR NA MEDIAÇÃO EM PORTUGAL E NO BRASIL

Abstract

The high rate of litigation and the belief that the State alone is responsible for solving legal conflicts has been increasingly overcome by the Brazilian and Portuguese justice systems, which have been adopting and encouraging the use of adequate means of conflict treatment. In the present work, we appreciate the so-called mediation, one of the adequate means of conflict resolution, recently regulated in the governing laws of both countries and whose unique importance deserves to be disseminated due to its numerous benefits, such as the reestablishment of communication between the parties. involved, the realization of justice, social pacification and the rescue of the dignity of individuals, without prejudice to procedural speed, cost reduction, absence of formalism and rigidity of procedure and the very growth of economies. We promote, in terms of comparative law, a brief dialogue between some aspects of the legal regimes currently in force on both sides of the Atlantic, highlighting their similarities and differences and highlighting their positive and negative aspects, identified in the practical application of such a mechanism. We analyzed the fact that, in both legislations, legal training is not required to perform the function of mediator and how this, despite being very enriching, considering the transversal character of conflicts, at the same time can be fearful in allowing the constitution of an extrajudicial executive title " against legume”. Finally, we offer some bold proposals such as that the executive titles constituted by mediators without legal training, with parties unaccompanied by lawyers and Public Defenders, must necessarily pass through judicial approval and that for the mediator to carry out approaches from a different field of law, the same requirements are observed so that a professional can be qualified as an expert in a process, ensuring legal certainty for all those involved.