A resolução alternativa de conflitos verticais: a mediação na administração pública

Abstract

This study aims to analyze mediation in Public Administration as an alternative way of resolving conflicts against individuals. Unlike what happens with disputes decided by the Judiciary, mediation provides a model of consensual public administration, with the possibility of horizontalizing the relations between the Public Administration and individuals, in addition to being able to prevent new conflicts arising from the original. The Judiciary Branch cannot restrict itself to the replacement of the parties' will by the judicial decision, given the fact that jurisdictional protection does not end with the elimination of the dispute, but must also incorporate the treatment of disputes. Even though Public Administration in Brazil is subject to the principle of legality, a systematic interpretation of the Federal Constitution and specific legislation makes it possible to use mediation in this context. The proposed hypothesis is that the Public Power must offer alternative means of conflict resolution as a way to meet social demands and realize fundamental rights. For the development of this work, it is necessary to consider the possibilities of applying mediation to conflicts between the Public Power and private individuals based on the interpretation of the constitutional principles applicable to the Public Administration, together with the applicable procedural legislation. The methodological approach followed proposes the analysis of the relationship between the crisis of the State and the administration of conflicts, alternative methods for resolving disputes, the possibility of changing the paradigm of verticality to that of horizontality, and the treatment given to mediation in the Brazilian present. Through a deductive process, the possibilities of mediation in improving access to justice, the main models and theories about conflict mediation and the presentation of concrete solutions for the use of mediation in conflicts between the Public Administration and individuals are analyzed. The research technique used is indirect documentation, through bibliographic, jurisprudential and legislative research. The results obtained from the research allow us to conclude that mediation contributes to access to justice and brings legal security at levels that cannot be expected from the substitutive action of the Judiciary.