Accessing Justice Through Settlement? Repeat Players in Court-Connected Mediation and Conciliation Programs in Brazil

Abstract

Do repeat players come out ahead in court mediation and conciliation in Brazil? In order to address this issue, the research investigates how consensual mechanisms are used by courts to deal with repeated litigation and which are the practices and techniques specifically aimed at repeated disputes. The characteristic elements of these repeated disputes are the similarity of the factual and/or legal arguments, the representativeness of the volume of claims and the fact that one of the parties litigates in similar disputes more often, while the other in involved in such type of cases only occasionally. These “repeat players” are known as the great litigants of the Judiciary, and enjoy certain advantages in terms of bargaining power, resources and information in view of their size and the frequency with which they are involved with similar cases.An empirical research was carried out in court programs to study the perceptions of the players involved in the design and routines of these programs on the issues raised. It was found that repeated litigation is a crucial part of court conciliation and mediation programs, influencing the role of the main stakeholders (parties, lawyers and conciliators/mediators), screening and case management practices, access conditions, specific techniques and the role played the Judiciary, who shall also act as manager, designer and institutional mediator. It is concluded that the structure and design of these programs and the role of those involved can be key factors for an adequate treatment of repeated disputes in the judicial context.