The country is increasingly resorting to conciliation to resolve disputes of a structural nature and with political repercussions — a movement that has accelerated in recent years and raises criticism among legal experts.
Conciliation is an alternative means of resolving conflicts. The objective is to help the parties reach an agreement rather than the answer coming from a court decision. The option for the technique is not new, but at least since 2020 the Supreme Court has been carrying out a process to internalize it.
In April, it began a conciliation process to address the issues.
The stipulates that the demarcation must respect the area occupied on the date of promulgation of the Constitution (5/10/1988). In 2023, , but months later . The case went up to the STF again.
When creating a commission to debate the issue, Gilmar Mendes stated that this controversy “will not be resolved with a judicial decision alone” and that “the usual institutional dialogue between the Powers has proven unsatisfactory”.
Eloisa Machado, professor at FGV Direito SP, participated in the hearing as a lawyer for Apib (Articulation of Indigenous Peoples of Brazil), before the entity withdrew. She considers this conciliation “a disaster”, as it puts the rights of minority groups on the table, also in the minority on the commission.
Conciliation, says Machado, is great for the owner of a Beetle that collided with a Mercedes, but there is a long way to go to adapt this model to a trial on constitutionality.
“We are talking about the protection of minority rights and legislation that comes to deconstruct a Supreme Court decision. Is it conciliation or a court without the authority to impose its decision?”, she says.
The time frame is not the only matter submitted to the conciliation process in recent months. A, a and even go through the same legal procedure.
The court, on the other hand, has already approved agreements relating to e (Tax on the Circulation of Goods and Services).
The incorporation of alternative conflict resolution methods accelerated from 2020, with the issuing of resolutions that established centers for reaching agreements in court and promoting cooperation with other bodies of the Judiciary.
A panel maintained by shows that since 2015 the court has approved 46 agreements in 106 processes. Another 39 are under analysis and 21 remain without a consensual solution. The data do not include all cases submitted to conciliation, but they reveal a pattern that is beginning to consolidate in the court.
Maria Cecília Asperti and Danieli Chiuzuli, from FGV Direito SP, analyzed these processes. The article “Supremo conciliador”, written by them, was published in the Revista Estudos Institucionais and considered data up to February 25th.
Asperti and Chiuzuli concluded that in some cases conciliation served to deepen the debate and expand institutional dialogue. In others, to circumvent a decision with possible political impacts.
According to them, there is no standard related to the type of process sent for conciliation. They are very varied.
In a note, the court stated that consensual methods can be used when the legal issue, however objective it may be, has repercussions in concrete situations. He also said that each case is treated individually, according to its particularities.
According to the authors, although the discussions are in the Supreme Court, until recently they did not deal with constitutionality, but with operationalization and inter-federative conflicts. That changed with the case of the time frame, they say.
“In no other case have we seen a proposal to negotiate constitutionality control”, says Maria Cecília Asperti, professor at FGV Direito SP. “This is very debatable, very problematic”, since the discussion moves into the field of non-negotiable rights.
Chiuzuli, a researcher at the same institution, says it is “unconstitutional to negotiate constitutionality” and that the discussion about the time frame demonstrates an expansion of what the court had been doing until then.
The STF stated in response that constitutionality is one of the limits of the conciliation object. He also said that this was discussed in the first hearing regarding the time frame, when “all doubts regarding the procedure were answered”.
Lawyer Cassio Scarpinella Bueno, president of the Brazilian Institute of Procedural Law, says that conciliation exists to try to reach a consensus, so that there is a balance and everyone involved sees the pros and cons of the issue.
Bueno sees the court’s move to seek alternative methods as “sensational” and states that these techniques serve to convince the parties that they are not “all right in the world” and that “life in society imposes losses”.
The proceduralist considers that the adoption of conciliation to resolve conflicts within the scope of the Supreme Court is a new idea that seems to be well accepted in the court.
Insper law professor Luiz Fernando Esteves is one of those who condemn the initiative. Esteves criticizes the fact that people are asked to participate in confidential discussions that can decide whether a law is constitutional.
“I can’t see any parallel in any other constitutional court in the world,” he says. “The STF is giving up the power, or duty, that it has to decide and handing it over to the parties. It is a new type of ‘non-decision’ by the court.”
