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Master's Dissertation
Full name
Maria Cecília de Araujo Asperti
Knowledge Area
Date of Defense
São Paulo, 2014
Salles, Carlos Alberto de (President)
Costa, Susana Henriques da
Gabbay, Daniela Monteiro
Title in Portuguese
Meios consensuais de resolução de disputas repetitivas: a conciliação, a mediação e os grandes litigantes do judiciário
Keywords in Portuguese
Direito processual civil
Mediação e conciliação
Reforma judiciária
Abstract in Portuguese
Direito processual civil, Mediação e conciliação, Reforma judiciária
Title in English
Settlement in repeated litigation: repeat players in court conciliation and mediation.
Keywords in English
Alternative dispute resolution
Case management
Crisis of the Judiciary
Dispute system design
Mass litigation
Repeated litigation
Abstract in English
The proliferation of individual claims repeating factual and/or legal matters have inspired procedural reforms aimed at the standardization of judgments, the consolidation of precedents and the collectivization of individual claims and searching for effectiveness and legal certainty. Another important response to this repeated litigation is the promotion of consensual dispute resolution, especially conciliation and mediation in the courts. This research investigates how consensual mechanisms are used by courts to deal with repeated litigation and which are the practices and techniques specifically aimed at repeated disputes. The characteristic elements of these repeated disputes are the similarity of the factual and/or legal arguments, the representativeness of the volume of claims and the fact that one of the parties litigates in similar disputes more often, while the other in involved in such type of cases only occasionally. These repeat players are known as the great litigants of the Judiciary, and enjoy certain advantages in terms of bargaining power, resources and information in view of their size and the frequency with which they are involved with similar cases. An empirical research was carried out court programs in Brazil and the United States to study the perceptions of the actors involved in the design and operation these programas on the issues raised. It was found that repeated litigation is a crucial part of court conciliation and mediation programs, influencing the role of the main stakeholders (parties, lawyers and conciliators/mediators), screening and case management practices, access conditions, specific techniques and the role played the Judiciary, who shall also act as manager, designer and institutional mediator. It is concluded that the structure of these programs and the role of those involved can be key factors for an adequate treatment of repeated disputes in the judicial context.
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