O acesso à justiça e a mediação de conflitos sanitários : da adjudicação unilateral para o diálogo estruturado, democrático e orientado por evidências.

Abstract

This study, developed as a doctoral thesis within the Graduate Program in Law (Stricto Sensu) – PhD in Law – in the concentration area of Social Rights and Public Policies, under the research line Instrumental Dimensions of Public Policies, at the University of Santa Cruz do Sul (UNISC), and supervised by Professor Fabiana Marion Spengler, PhD, addresses access to justice and the mediation of health-related conflicts, proposing a transition from unilateral adjudication to a structured, democratic, and evidence-based dialogue. The judicialization of health stands among the greatest contemporary challenges of the Brazilian justice system, as it strains the effectiveness of the fundamental right to health while undermining the administrative and budgetary rationality of the State. Thus, the research problem consists in understanding how structured, democratic, and evidence-based mediation can offer more adequate and sustainable solutions to health-related conflicts. More specifically, the study asks: How can mediation, conceived as a public policy for access to justice, overcome the strictly adjudicatory logic and reconcile procedural celerity, democratic legitimacy, and evidence-based effectiveness in the protection of the right to health between 2020 and 2024? What adjustments could be proposed for the consolidation of a standardized procedural model of health mediation at the national level? Accordingly, the working hypothesis assumes that mediation, when structured and guided by scientific criteria and democratic participation, is capable of providing more adequate and sustainable solutions to health-related conflicts than unilateral adjudication, thereby promoting more effective access to justice in line with the constitutional requirements of the right to health. The adopted methodology follows a hypothetico-deductive approach, employing the monographic method and bibliographic technique, grounded in relevant doctrine and legislation. The results indicate that mediation, as a mechanism of self-composition, when institutionalized as a public policy, has concrete potential to reduce the exclusive dependence on adjudicatory jurisdiction, fostering faster, more dialogical, and less costly solutions. The findings therefore point to the need to balance procedural efficiency and democratic legitimacy, valuing citizen participation, institutional dialogue, specialized training of mediators, and the integration of technical and scientific evidence as indispensable conditions for self-composition to consolidate itself as an effective instrument for the protection of the fundamental right to health. Finally, the study recognizes the persistence of regional inequalities, the shortage of qualified human resources, and the absence of systematic evaluation of agreement quality as limitations of the current model. Nevertheless, it concludes that access to justice in health will only be effective through the consolidation of a new procedural paradigm in which mediation and adjudication act in an integrated and complementary manner, shifting the focus from unilateral decision-making to structured, democratic, and evidence-based dialogue.