A audiência de conciliação/mediação do art. 334 do CPC/15 e as discussões em torno de sua obrigatoriedade

Abstract

The subject of this research is the conciliation and mediation hearing provided for in article 334 of the 2015 Brazilian Code of Civil Procedure (CPC/15), addressing, in addition to its procedural aspects, doctrinal and case law discussions regarding its practical application and the mandatory nature of the hearing. The general objective proposed was to analyze the challenges for the application of art. 334 of the CPC/15, focusing on the study of the practical impediments to the implementation of the hearing in the Brazilian judicial branch, the discussion in case law, with special attention to the decisions from the Appellate Court of Minas Gerais, and to the doctrine about the mandatory nature of art. 334’s hearing and the cases in which it is not mandatory, as well as the consequences of the hearing’s non-realization in situations not provided for by the CPC/15, such as the possible procedural nullity, and the imposition of a fine for obstruction of justice due to the non-attendance of the parties to a scheduled hearing. Through the analysis of primary and secondary data, a survey was carried out of available empirical data on conciliation and mediation hearings in the Brazilian practice, as well as a review of case law and doctrine regarding the proposed discussions. Thus, despite all the difficulties in applying art. 334 of the CPC/15, it was possible to conclude, initially, that conciliation rates in pending cases, both in state and federal courts, increased after the CPC/15 came into force, in addition to an increase in the number of Judicial Centers for Conflict Resolution and Citizenship (Centros Judiciários de Solução de Conflitos e Cidadania) in state courts. On the other hand, the research identified that, in practice, many judges are not scheduling these hearings in situations that do not fall within the legal hypotheses for the hearing not to be held, based on various reasonings, including the possibility of making the procedure more flexible. In addition to the difficulty of gauging the effectiveness of the institute, and bearing in mind the structural and cultural challenges, the research found that there is a divergence of doctrine and case law both in relation to the mandatory nature of the hearings, especially with regard to its waiver when only one of the parties expresses disinterest in self-composition, and to whether or not the whole procedure or a procedural act is null and void when the hearing is not held outside the Code’s hypotheses. The research concludes that the hearing should not be held only in exceptional cases, and this would require the judge to comply with the criteria indicated by the doctrine to make the procedure more flexible (namely, purpose, due process and reasoning) and recommends a well-founded case-by-case analysis, otherwise risking non-compliance with the fundamental principles of Brazilian civil procedure and undermining the project to encourage self-composition and the multi-door approach in the justice system established by the CPC/15. As to considering the whole procedure or a procedural act null and void, it concluded that each specific case entails an analysis of whether the failure to schedule the hearing caused damage to the party claiming this nullity and, therefore, whether it is a case of procedural nullity.