The Integration of Mediation Within Justice System: An Assessment from the Brazilian and European Legal Frameworks

Abstract

Lately Europe and Brazil have been suffering from the systemic inefficiency of their Courts, with a significant impact on the guarantee of access to justice for their citizens, making the alternative dispute resolution a constant presence in both civil law and common law systems of jurisdiction. The upshot has been the institutionalization of ADRs, taking the form as a routine presence at codes of civil procedure, while its practice is introduced into the courts. However, both institutionalization and the obligation to take part in mediation programs before or after starting the suit are exceptional measures, which must be adopted with caution. This article will examine the institutionalization of mediation in the European Union with its Directive as well as the required adjustments intended to deliver a court-connected mediation along a procedural justice enhanced by the Brazilian Civil Procedure Code sanctioned on 16th March 2015 and enforced as from 17th march 2016 with regard to mediation and the Mediation Act n. 13.140 sanctioned on 26th June 2015, enforced as from 27th December 2015, analyzing the adjustments that should be held to incorporate mediation process within a procedural justice paradigm.