3º Curso de Formação de Conciliadores e Mediadores; 1º Curso de Superv. e Coorde. CEJUSC - Aula 2

Name: 3º Curso de Formação de Conciliadores e Mediadores; 1º Curso de Superv. e Coorde. CEJUSC - Aula 2
Uploaded: 2023-08-25T17:44:56.000Z
Duration: 4 h 22 min 53 s

Understanding Alternative Dispute Resolution in Labor Justice

The Importance of Exploring Alternatives

The speaker emphasizes the existence of various alternatives globally, encouraging an open-minded approach to understanding their utility and relevance to individual styles and aptitudes.

Techniques for Effective Judicial Delivery

Acknowledgment of numerous intuitive techniques used daily that can be systematized through study, including methods like the "tree method" mentioned in courses from other universities.

Pragmatic Approach to Conflict Resolution

The necessity for a pragmatic perspective among magistrates is highlighted, particularly regarding the integration of CEJUSCs (Centros Judiciários de Solução de Conflitos e Cidadania) into judicial practices as a priority policy by CNJ.

Efficiency and Contribution of CEJUSCs

CEJUSCs are recognized for their efficiency within their proposed models, providing significant contributions towards simplifying judicial processes and enhancing service delivery.

Public Policy on Appropriate Dispute Resolution

Discussion on public policy aimed at appropriate dispute resolution in labor justice, which is crucial for ensuring access to justice and social pacification through multiple avenues for resolving disputes.

Pre-Processual Conflict Management

Emphasis on the growing importance of pre-processual conflict management in labor justice, especially during pandemic times when traditional methods may not suffice.

Informed Decision-Making Principles

Introduction of the principle of informed decision-making where all parties involved contribute to constructing solutions rather than relying solely on imposed decisions from third parties.

Credibility Challenges in Judicial Decisions

The speaker addresses societal perceptions regarding judicial authority, noting a cultural tendency towards resistance against complying with imposed decisions rather than collaborative agreements.

Statistics on Judicial Agreements

Understanding the Role of Conciliation in Labor Justice

Importance of Compliance and Credibility

90% of agreed decisions tend to be fulfilled, while only 69% of forced executions succeed. This discrepancy highlights the need for a solution-oriented approach rather than mere imposition.

Evolution of Public Policy in Conflict Resolution

The new CPC (Civil Procedure Code) emphasizes cooperation as a principle, prioritizing amicable solutions over adversarial ones. This shift is crucial for addressing increasingly complex conflicts.

Historical Context and Development of CEJUSC

The embryonic project for the CEJUSC (Judicial Centers for Conflict Resolution and Citizenship) originated from São Paulo's judicial centers, which served as a model for conflict resolution practices.

The experience at one of São Paulo's early centers provided valuable insights into effective models that were later adapted into national resolutions.

Legislative Framework Supporting Mediation

The CTC (Code of Civil Procedure) includes specific articles on conciliation and mediation, reinforced by Law 13.140/2015 concerning arbitration and mediation practices.

These legislative frameworks underscore the historical moment where labor justice must engage more actively with conciliation and mediation processes.

Challenges Faced by Labor Justice in Embracing Conciliation

Labor justice has been historically excluded from many initiatives aimed at promoting conciliation, leading to significant challenges in adopting these practices effectively.

Despite lacking formal legislative support, various courts have implemented practical initiatives that often faced instability due to administrative changes affecting policy continuity.

Institutional Resistance to Collaborative Approaches

There has been institutional resistance within labor justice towards embracing collaborative conflict resolution methods due to historical perspectives on social rights involved in labor disputes.

This resistance creates an environment of uncertainty regarding the future prioritization of public policies related to conciliation within labor courts.

Current State and Effectiveness of Conciliation Practices

A significant question arises about why there has been reluctance towards institutionalized participation in public policy favoring third-party collaboration in conflict resolution.

Labor justice is recognized for its ability to resolve cases through agreements; it remains essential to understand this context when discussing adherence to broader conciliatory policies.

In 2021, data confirmed that labor justice resolves most cases through agreements, with approximately 23% resolved amicably across all instances.

Insights on Legislative Initiatives Impacting Labor Relations

Recent legislative efforts aim at providing general settlements for employment contracts highlight ongoing discussions around workers' rights and their implications on dispute resolution strategies.

Understanding the Role of Class Judges in Labor Justice

Historical Context and Challenges

The necessity to establish a clear understanding at the Superior Court (TST) regarding the implications of contract termination and its effects on labor contracts.

Discussion on historical class judges within labor justice, emphasizing their role in ensuring parity in labor disputes.

Class judges were appointed politically, often leading to concerns about their effectiveness and impartiality in resolving labor conflicts.

The Impact of Class Judges

Personal motivation for engaging with labor justice stems from familial ties; speaker's father served as a class judge, influencing their perspective on conflict resolution.

Centralization of authority among magistrates is highlighted, with class judges seen as less significant compared to officially appointed judges.

Evolution of Labor Justice Policies

Over time, a distinct public policy framework emerged for labor justice, moving away from general practices towards specific regulations.

Resolution 174 by CSJT was established to address operational aspects of this new public policy framework.

Key Features of New Regulations

Emphasis on democratic processes during the creation of new norms; input from various stakeholders was considered essential.

Inclusion of mandatory legal representation during conciliations was advocated by lawyers and incorporated into the new regulations.

Ongoing Developments and Training Requirements

Resolution 288 institutionalized judicial units within administrative tribunals, marking a significant step forward in organizational structure.

Continuous evolution is emphasized through ongoing training requirements for professionals involved in labor justice, highlighting the importance of lifelong learning.

Conclusion: Future Directions

The need for permanent qualification is underscored as crucial not only for current roles but also for future career development within labor justice systems.

Clarification that mediators must have prior connections to labor justice reflects historical perspectives shaping current practices.

Understanding Normative Frameworks in Labor Justice

Overview of Norm 174 and Its Importance

The speaker emphasizes focusing on the general aspects of Norm 174, which is crucial for understanding the regulatory framework within labor justice.

The discussion highlights that the central resolution is more significant at this moment than specific administrative points from Norm 288.

Legislative Context and Changes

The speaker compares the Brazilian Constitution to a constantly updated directory, indicating frequent amendments and updates post-Amendment 45.

Resolution 174 establishes public policy for appropriate dispute resolution in labor justice, aiming to reduce reliance on traditional judicial decisions.

Conflict Resolution Strategies

The resolution outlines procedures for resolving conflicts without imposing decisions by third parties, promoting self-resolution among disputing parties.

It introduces opportunities for technical cooperation with other judicial bodies and institutions to enhance conflict resolution efforts.

Institutional Support and Ethical Guidelines

There’s an emphasis on institutionalized support for resolving conflicts, especially in cases involving mass layoffs or business closures impacting employment.

The norm mandates training for involved parties and establishes a code of ethics for conciliators and mediators based on foundational principles.

Differentiating Conciliation from Mediation

A clear distinction is made between conciliation (involving active facilitation by a public servant) and mediation (where the mediator acts as a neutral facilitator).

Conciliation is recommended for non-continuous relationships while mediation suits ongoing relationships with prior connections between parties.

Practical Application of Techniques

Recommendations discourage mediators from proposing specific solutions to avoid anchoring participants' expectations around suggested values.

The speaker reflects on their personal approach to mediation, acknowledging a tendency towards more directive involvement rather than purely facilitating discussions.

Institutional Framework Development

New structures like PMEC are introduced as intelligence bodies within the tribunal to oversee conciliation policies effectively.

Cejusc Coordination and Mediation Practices

Role of Cejusc Coordinator and Supervisor

The coordinator of Cejusc manages the unit, establishing policies in line with Nopemec's guidance, while the supervisor is present during conciliation and mediation sessions.

In the 18th model discussed, multiple colleagues act as audience supervisors under a coordinating colleague, promoting democratic participation among supervisors.

Conciliators and Mediators: Who Can Serve?

There are restrictions on who can serve as conciliators or mediators in labor justice; currently only active/inactive servers and magistrates are allowed to volunteer for these roles.

Recent changes allow inactive magistrates to participate as conciliators/mediators, alongside new provisions for interns to accompany mediation sessions.

Confidentiality Principles in Mediation

Restrictions on who can participate in mediation sessions stem from confidentiality principles; some courts previously allowed interns to observe these sessions.

A notable intern demonstrated exceptional skills in mediation at Cejusc, highlighting the potential of trained interns contributing positively to the process.

Normative Changes and Collaborative Construction

Resolution 288 institutionalizes collaborative practices within norms, emphasizing physical presence requirements for supervising magistrates during hearings.

The necessity for a magistrate's oversight during conciliation/mediation is underscored by experiences shared by practitioners involved in these processes.

Practical Experiences with Mediation Procedures

Personal anecdotes illustrate how effective mediators can transition into judicial roles while maintaining similar procedural approaches without being formal judges.

Current practices involve conducting simultaneous hearings that optimize time management while ensuring thorough engagement with all parties involved.

Enhancing Process Efficiency through Digitalization

Adaptations have been made to streamline initial hearings without requiring defense presentations, allowing parties to engage directly from the outset.

The integration of digital processes has improved efficiency; even though not fully digital yet, there are efforts towards making procedures more streamlined through technology.

Achieving Conciliation Goals

Initial meetings focus on dialogue rather than formal defenses; if no resolution occurs, procedural steps follow based on mutual agreements reached during discussions.

While not entirely digital yet, ongoing efforts aim at optimizing case processing times through strategic scheduling and reduced need for multiple notifications.

Reflections on Mediation Successes

Despite varying opinions about current methodologies, personal success stories highlight increased capacity for units aiming at resolving disputes amicably between parties.

Changes in Mediation Procedures in Labor Justice

Overview of New Regulations

The resolution 74 limits the number of sessions a magistrate can supervise simultaneously, promoting their involvement in mediation efforts.

Resolution 288 allows for the presence of lawyers during mediation sessions, enabling claimants to participate actively while ensuring that the magistrate personally supervises these sessions.

Impact of Pandemic on Mediation Practices

The current regulations permit claimants to act as postulants in mediation, provided that the magistrate leads the session directly rather than through intermediaries.

A significant change due to the pandemic is the acceptance of pre-processual conciliation and mediation, allowing cases to be addressed before formal conflicts arise.

Evolution of Pre-processual Mediation

The introduction of pre-processual mediation was initially a response to pandemic conditions, with guidelines established for its implementation within judicial systems.

Successful pre-processual mediations can lead to extrajudicial transaction homologation, although this raises questions about procedural integrity within judicial contexts.

Shifts in Judicial Perspectives

There has been a paradigm shift regarding public policy towards conciliation; previously contentious practices are now accepted as standard procedures within labor justice.

This evolution reflects broader changes in societal attitudes toward conflict resolution methods and their legitimacy within legal frameworks.

Operational Changes and Challenges

Resolution 288 introduces new operational protocols for CEJUSCs (Judicial Centers for Conflict Resolution), requiring adaptation from magistrates and staff alike.

The possibility exists for multiple processes from different labor courts to be consolidated at CEJUSCs, enhancing efficiency but also complicating case management.

Role of Support Staff in Mediation Sessions

Internships are now permitted during conciliation sessions, indicating an effort to involve more personnel in dispute resolution processes.

Cejusc and Judicial Processes

Overview of Cejusc's Role in Judicial Decisions

The process transitioned to Cejusc, raising questions about who would make decisions regarding cases. Initially, the resolution of disputes remained with the judges in their respective courts.

During hearings, judges must decide on immediate provisional requests, which can lead to confusion as they handle multiple cases simultaneously.

A suggestion was made for units to be prepared to make decisions based on existing precedents from the tribunal, allowing for quicker resolutions.

Challenges Faced by Judges

There is a concern about jurisdiction when cases are sent to Cejusc; judges may feel uncertain about their authority over certain matters.

Many conciliations are managed by one or two magistrates overseeing numerous cases, making it challenging for them to address all necessary details effectively.

Regulations and Procedures

Article 11 of Resolution 288 outlines the role of magistrates as supervisors at Cejusc, particularly addressing situations involving defaulting parties.

The responsibility for handling cases lies with the originating court, which must determine whether applying default judgment is appropriate.

Evolution of Case Management

The voluntary referral of processes to Cejusc aims to streamline conflict resolution without compromising judicial integrity.

Current practices have evolved towards a more collaborative approach in resolving conflicts through negotiation rather than adjudication.

Focus on Conciliation Techniques

Judges now refer complex cases requiring deeper analysis back to Cejusc for potential conciliation efforts.

Initial discussions around establishing Cejusc emphasized its focus on conciliation as outlined in CPC Articles 314 and 315.

Historical Context and Development

The concept of conciliation has shifted from informal invitations for dialogue to structured judicial techniques aimed at fostering resolution.

There was an initial resistance against implementing penalties for non-participation in reconciliation efforts; however, this perspective has evolved over time.

Discussion on Labor Court Practices

The Role of Judges in Labor Conciliation

The speaker discusses the evolving role of labor judges, emphasizing the need for them to be prepared not only to supervise conciliations but also to make decisions, reflecting a hybrid approach in their responsibilities.

Changes Due to Pandemic Impact

The pandemic has led to significant transformations in labor court practices, particularly regarding conciliation processes that were previously deemed impossible.

Procedural Adjustments and Timelines

Audiences are now being conducted under new procedural rules (CPC Articles 314 and 315), with uniform timelines established for conciliation efforts, extending deadlines by 15 days.

Enforcement of Attendance in Conciliation

A specific case is mentioned where a judge enforced personal attendance at conciliation sessions due to concerns about lawyer resistance affecting party participation.

Application of Fines in Labor Processes

The discussion highlights the application of fines during execution phases, particularly when parties fail to attend required sessions as mandated by the judge.

Evolving Norms and Regulations

Anticipated Changes in Legal Framework

There is an expectation that further changes will occur within legal norms governing labor courts, especially concerning Article 7 of Resolution 174.

Validity of Conciliations and Mediations

Only conciliations and mediations supervised by judges will hold validity within labor courts; however, there are ongoing discussions about pre-processual mediation's applicability.

Limitations on Private Mediation Practices

Current regulations restrict private mediation practices from being applicable within labor courts, although this may evolve as practices change over time.

Institutional Developments and Recommendations

Opening Doors for New Mediation Approaches

The introduction of Otrex has opened avenues for discussing mediation outside traditional judicial frameworks while still ensuring oversight from relevant authorities.

Recommendations During Pandemic Adaptation

Recommendations made during the pandemic have legitimized pre-processual actions which were previously restricted under existing norms.

Training and Ethical Standards for Mediators

Continuous Education Requirements

Emphasis is placed on the necessity for ongoing training and certification updates for mediators and judges involved in conciliation processes as outlined in Article 13 of Resolution 288.

Establishment of Ethical Guidelines

New Changes in Administrative Norms

Overview of Act 141 and Resolution 288

The discussion centers on recent changes brought by Act 141 of the CSJT, which was later transformed into Resolution 288. The speaker has prepared a mental map to illustrate these updates.

Emphasis is placed on the importance of understanding specific articles and points within the norm, as this information will be provided in materials available on Moodle.

Importance of Public Policy in Labor Justice

The detailed requirements outlined in Act 141 and Resolution 288 are crucial for magistrates' roles and their tenure in positions.

A significant debate revolves around prioritizing appropriate public policies for conflict resolution within labor justice, highlighting its relevance to public servants.

Sensitization and Adaptation to New Policies

There is a call for increased awareness among public servants and magistrates regarding the ongoing realities of labor justice policies that require adaptation.

An invitation for questions or reflections from participants indicates an openness to dialogue about these changes.

Experiences with Conciliation in Execution Processes

Insights from Judicial Experience

The speaker shares personal experiences as an Auxiliary Judge, noting that conciliation involves addressing conflicts beyond initial petitions but rather those experienced by parties during proceedings.

Different approaches are observed between initial hearings and execution phases, suggesting a need for tailored strategies based on the phase of litigation.

Challenges in Execution Phase Conciliation

In execution processes, there are unique challenges when implementing conciliation compared to other stages like knowledge phases (cognitio).

Questions arise about whether conciliation techniques used effectively in knowledge phases can yield similar results during execution phases.

Collaboration Between Specialized Centers

Integration of CEJUSC and Execution Centers

There is no prohibition against executing processes being submitted to CEJUSC; collaboration between specialized centers is encouraged.

The speaker describes a close working relationship between coordinators from both CEJUSC and execution centers, facilitating solution-oriented discussions.

National Perspectives on Conciliation Techniques

Acknowledgment that various techniques exist which could resolve numerous execution cases efficiently; however, implementation varies regionally.

Highlighting ongoing discussions regarding substantial amounts tied up in legal disputes emphasizes the potential benefits of effective conciliation strategies.

Opportunities for Effective Conflict Resolution

Current Legal Context

Ongoing legal discussions present opportunities for conciliatory resolutions amidst complex financial disputes involving large sums held up due to litigation delays.

Discussion on Execution and Debt Resolution

The Role of Banks in Debt Management

The speaker emphasizes that banks are likely pleased with the current situation regarding large sums of money, such as 600 million, which can significantly impact any economy.

There is a concern about the duration these funds remain stagnant, suggesting that this presents an opportunity for improvement in handling large debtors.

Techniques for Conflict Resolution

The discussion highlights the importance of individualized conflict resolution to achieve social pacification, especially during execution phases.

A suggestion is made to adopt more aggressive conciliatory language during procedural phases to enhance outcomes for all parties involved.

Different Approaches in Execution Phases

The speaker notes that techniques used in execution differ from those applied in knowledge processes, indicating a need for tailored approaches.

It’s pointed out that parameters established during execution often lead to total credit renunciation, which cannot occur in knowledge phases.

Perspectives on Credit Renunciation

A disagreement arises regarding the concept of "win-win" situations; the speaker argues that having over 600 billion tied up represents a missed opportunity for companies.

The conversation shifts towards understanding uncertainties surrounding credit satisfaction and whether individuals should be part of the execution process.

Creditor's Perspective on Payment Plans

There's an exploration of how creditors may have to accept payment plans (e.g., 12 or 36 installments), which could be seen as a form of renunciation concerning their recognized credits.

The distinction between recognized credits and actual payments is discussed, emphasizing how creditors might feel pressured into accepting less favorable terms.

Importance of Informed Decisions

A principle emerges around informed decision-making within procedural contexts; creditors must navigate complex circumstances when agreeing to payment structures.

Discussion on Execution Phase in Legal Processes

Importance of CEJUSC in Execution Phase

The speaker emphasizes the need for adaptations in legal processes, particularly highlighting the expertise of CEJUSC (Center for Judicial Conciliation) as beneficial during the execution phase.

A conversation with Eduardo Tom reveals that cases in the execution phase can be referred to CEJUSC, leveraging their experience and dedication to conciliation effectively.

The speaker notes a lack of focus on execution compared to knowledge phases, indicating a need for more time and resources dedicated to this area.

Challenges in Execution Phase

The report "Justice in Numbers" by CNJ identifies execution as a significant bottleneck where judgments are not effectively enforced, leading to situations where winning parties do not receive compensation.

There is an agreement among speakers that attention should shift from solely focusing on knowledge phases to also include execution for greater process effectiveness.

Observations from Practical Experience

Dr. Rodrigo shares insights from his experiences at CEJUSC, noting that executors often face challenges due to outdated calculations and insufficient amounts being offered for settlement.

He points out that many exequents accept lower amounts than owed due to financial pressures, which complicates resolution efforts.

Differences Between Knowledge and Execution Phases

Discussion highlights differences between traditional conciliation attempts in knowledge versus execution phases; judges tend to adopt a more aggressive stance during executions due to existing judicial titles.

Judges may feel unprepared for handling executions since training typically focuses on knowledge processes rather than practical aspects of executing judgments.

Need for Enhanced Preparation

There is a consensus that judges require better preparation and training specifically tailored towards managing execution cases effectively.

The speaker stresses the importance of understanding conflicts inherent in executions, which differ significantly from those encountered during knowledge processes.

Understanding Conflicts in Executions

It’s noted that conflicts arising during executions involve concrete rights and economic realities rather than mere claims or pretensions, necessitating a different approach from mediators.

Understanding Judicial Execution and Recovery Processes

The Nature of Judicial Execution

The speaker discusses the misconception that judicial recovery is merely an execution process, emphasizing the need to differentiate between various roles in conflict resolution.

A judge's role in execution can sometimes overlap with recovery processes, but they often handle forced execution actions without a clear framework for recovery.

Legal Framework and Responsibilities

Reference to the "Saf" law highlights a sophisticated approach to fiscal responsibility within sports organizations, drawing parallels with judicial recovery processes.

A critical distinction is made between knowledge and execution phases: during knowledge, facts follow rights; in execution, rights pursue facts.

Challenges in Execution

The effectiveness of executing legal obligations hinges on financial responsibility; mere acknowledgment of rights does not guarantee fulfillment.

Individuals often struggle to understand that their claims may not be prioritized due to limited resources available for debt repayment.

Prioritization of Claims

An example illustrates how federal courts prioritize creditors based on established claims rather than the timing of liens or attachments.

The speaker critiques the notion that certain debts (like labor claims) should inherently take precedence over others without considering case specifics.

Mediation Techniques and Their Application

There’s a call for more nuanced mediation techniques tailored specifically for execution cases rather than applying general rules indiscriminately.

Emphasis on understanding historical context in creditor-debtor relationships is crucial for effective mediation strategies.

Realities of Legal Agreements

Discussion about how agreements made during earlier stages often become less favorable as cases progress into execution phases.

The speaker reflects on personal experiences where theoretical discussions do not align with practical outcomes observed in long-standing cases.

Enhancing Mediation Practices

Advocating for improved training and awareness regarding basic phenomena surrounding executions could enhance mediation effectiveness across all phases.

Human Element in Legal Work

Discussion on Labor Credit and Conciliation

The Issue of Labor Credits

Discussion highlights the issue of labor credits being sold to lawyers, raising ethical concerns about the practice.

Acknowledgment of resistance among professionals regarding efforts to assist workers directly, as opposed to intermediaries like lawyers or companies.

Cultural Perspectives on Legal Processes

The conversation touches on a cultural perspective that views certain legal practices as immoral, impacting motivation for conciliation efforts.

Emphasis on the need for paradigm shifts in how legal processes are perceived and executed, particularly concerning compliance with judicial decisions.

Challenges in Execution and Conciliation

Discussion about the challenges faced during execution processes where credits are not corrected or are delayed, complicating conciliatory efforts.

Recognition that some parties may be inflexible during negotiations due to their interests in prolonging execution delays.

Frustrations with Current Practices

Expression of frustration over transactions involving parties who may not be rightful beneficiaries of labor credits, questioning the integrity of such dealings.

Mention of how these frustrations can influence one's sense of justice within the legal framework.

Need for Improved Strategies in Conciliation

Call for deeper study into effective strategies for conducting conciliations during executions without compromising ethical standards.

Reference to new paradigms introduced by recent laws that could reshape approaches to conciliation and execution processes.

Successful Conciliation Techniques

Sharing successful techniques used by practitioners in property research and execution management leading to effective conciliations.

Anecdote about a practitioner successfully negotiating payments after applying pressure on reluctant debtors through strategic communication.

Closing Thoughts on Continuous Improvement

Gratitude expressed towards participants for engaging in discussions aimed at improving conciliation practices despite complexities involved.

Course Overview and Virtual Environment Setup

Introduction to the Course Environment

The speaker addresses colleagues, emphasizing the importance of direct communication regarding course materials.

A link to the virtual classroom is provided, where all course materials, including weekly questionnaires, will be posted. The structure aligns with the course schedule.

Accessing Course Materials

Dr. Boris will send additional materials that will also be uploaded to the virtual environment for student access.

Clarification that the first questionnaire is not yet available; it will be posted later in the day after being sent by Dr. Platão and Dr. Borges.

Support and Communication

Students experiencing difficulties accessing the virtual environment are encouraged to reach out either directly or through EAD support staff (Lucimar or Fernando).

The session is recorded for future reference, allowing students to revisit content as needed.

Course Schedule and Upcoming Sessions

Important Dates and Guest Speakers

The course spans several Friday mornings; next week features guest speakers: Desembargador Bento Herculano from the 21st region and Judge Fernando Hoffmann from the 9th region.

Closing Remarks