Efetividade do direito e desafios contemporâneos dos métodos de solução consensual de conflitos coletivos: conciliação, mediação e transação em termo de ajustamento de conduta

Abstract

The thesis is a research about the subject consensual conflict resolution, especially its use in collective rights, allowing the investigation of the engines of social justice and effectiveness of the legal system, with fulcrum in social development. It was considered as hypothesis that the limitations to certain kinds of consensual conflict resolution by the legitimate public assets for collective actions constitute obstacles, in some situations, of the very effectiveness of the right to be protected. The thesis theoretical framework is the theory of Mauro Cappelletti and Bryant Garth entitled "Access to Justice", was developed through four chapters, besides the introduction, that preceded and culminated in examining the chapter of the compliance commitment agreement (CCA) or, in Portuguese Language, termo de ajustamento de conduta, as an alternative method of conflict resolution through the conciliation. The chapters that preceded are, in summary: effectiveness of conflict resolution; collective procedural microsystem; access to justice; unavailability of rights; all of these chapters included theories, principles and interpretive techniques related to the mentioned topics. The compliance commitment agreement is divided into two types related to the level of transaction in collective rights that are allowed. Exceptionally, and subject to compliance with certain requirements as to express reasons, advertising and transparency, compliance with the principle of proportionality, fiscalization by the prosecutors and other means, it is possible, after evaluation of the concrete case, to celebrate a compliance commitment agreement since it means greater protection for the collective rights protected by the law.