PRE-LITIGATION SETTLEMENT AS A PREREQUISITE FOR JUDICIAL ACTION

Abstract

The study aims to analyze conflicts of interest within the context of civil procedural law, specifically regarding conciliation and mediation. In this framework, the use of pre-litigation settlement, as a response for a quick and effective resolution of conflicts of interest, becomes indispensable. The present research proposes to analyze the use of conciliation and mediation in conflict resolution, especially before the filing of a judicial action, its historical context in the national legal system, and conditions to become a prerequisite for the admissibility of judicial action. This research, based on domestic and foreign doctrine, will discuss the factors of the crisis affecting state jurisdiction and its instrument, the legal process, as well as the social and cultural obstacles to accessing the judiciary and overcoming existing conflicts satisfactorily. Constitutional protection encompasses not only access to the judiciary but also the ways in which these conflicts are resolved in the shortest possible time, always remembering the social pacification in which it is involved. There has been a high number of inquiries, specifically regarding the effectiveness and delay in providing judicial protection; thus, the research objective is focused on seeking judicial protection responses that are rapid, effective, and achieve social pacification. The reflection of the research aims to analyze the causes, not the effects, of this crisis, as observed in the tendency of Brazilian legislation and the Judiciary itself to resolve the numerical crisis of judicial processes. It is understood from the outset that litigants seek a response from the Judiciary as the holder of the jurisdictional function, but equally, an efficient response, through effective, timely, adequate judicial protection, capable of resolving conflicts of interest placed for its consideration satisfactorily. Therefore, there is a need to rethink a renewed Access to Justice, efficient and capable of pacifying society within an efficient response and with a reasonable time frame to resolve conflicts that satisfy the parties involved. Thus, pre-litigation settlement presents itself as a fundamental instrument, as it provides, in addition to the desired celerity, the possibility for parties to overcome the conflict satisfactorily through negotiation.

Keywords: Alternative dispute resolution methods; Contested claim; Access to justice; Pre-conciliation Commissions; Negotiation Chambers.