Meios consensuais de tratamento de conflitos envolvendo entes públicos e particulares : autocomposição na administração pública.

Abstract

With the intention of improving the provision of public services in Brazil, Law 13.140/2015 (legal framework of mediation) was passed, through which, a differentiated treatment is applied to conflicts involving public and private entities. This law was enacted in response to a critical scenario through which the Judiciary has had difficulties in responding adequately to social conflicts. Therefore, the research theme covers consensual means of handling conflicts and their applicability as an adequate response to conflicts involving public and private entities, under the terms of the Law 13.140/2015, of the principles and rules that constitute the current Brazilian legal system. In this sense, the question is: why and how should consensual means of conflict treatment be used in situations involving public and private entities? This is based on the hypothesis that it is possible to use consensual means for handling conflicts. However, for its satisfactory application, from both a technical and practical point of view, the principles and peculiarities of Public Administration must also be considered. The general and specific objectives are aligned to the research problem and hypothesis as follows: The general one is to investigate why and how to use the consensual methods for handling conflicts involving Public Administration and individuals. While the specific ones propose to: a) analyze the asymmetry of power existing in the conflicts in which the State and the citizen are part, as well as the judicialization of social demands; b) consider positive and negative aspects of the legal framework of mediation, in terms of the concepts, principles and rules of mediation, as well as possibilities for self-assessment within the Public Administration; and c) investigate the principles, rules and laws that underlie the performance of the Public Administration in relation to the ones administered. Thus, in the expectation of complying with the research proposal, the method of deductive approach, and the methods of monographic and comparative procedures were used. The research techniques applied were the indirect documentation and an informal interview. The result of the research indicates that the self-composition between public and private entities can be treated satisfactorily through mechanisms such as negotiation and conciliation, and the use of mediation in this hypothesis is discouraged.