SIDE-EFFECTS OF THE GROWING TREND TOWARDS THE INSTITUTIONALIZATION OF MEDIATION

Abstract

For some time, Europe, Brazil and the United States have been suffering from the systemic inefficiency of their Courts, with a significant impact on the guarantee of access to justice for their citizens, making alternative dispute resolution (A.D.R.) a constant presence in both civil and common law systems of jurisdiction. The upshot has been the institutionalization of ADRs, taking the form of a routine presence in codes of civil procedure, while their practice is connected to the courts. However, both institutionalization and the obligation to take part in mediation programs before or after starting the suit are exceptional measures, which must be adopted with caution. The experience of the European Union with its Directive, the Brazilian experience of inserting mediation into the project for the new Code of Civil Procedure and the use of mediation to overcome the conflicts arising from the serious mortgage crisis in the U.S.A. will be analyzed in this article, seeking to demonstrate that the progress and diffusion of ADRs does not necessarily entail a breach with their underlying foundation, and particularly with regard to mediation, the loss of its identity, for it to be inserted into the context of access to justice.