Eighteen (18%) percent of the Brazilian adult population annually goes to court in hopes of third parties to resolve their conflicts. The expenses for the maintenance of the judiciary, in turn, surpassed the level of BRL 1 billion in 2019[1], that is, a quarter of the amount spent on all basic education in the same year.
Evidently, we must recognize the importance of the Judiciary and broad access to justice for our Democratic Rule of Law. There is no doubt that both are fundamental pieces in guaranteeing our rights, especially in the current Brazilian scenario.
Likewise, there is no need to speak of low productivity. Our Judges are among the 3 most productive in the world and even so we continue with a barrier in jurisdictional provision.
In this context, how to combat the high level of litigation without hindering citizens from the wide access to justice guaranteed by the Federal Constitution?
The efforts of the legislator and the judiciary in stimulating mediation and conciliation are undeniable, translated into the obligation of conciliation hearings and in the multiplication of CEJUSCs, units of the Judiciary Power focused on conflict resolution. Despite these and other efforts, the numbers of conciliation in court remained unchanged.
We need to think about solutions outside the Judiciary. It is essential to distinguish access to justice from access to the judiciary, and it is up to the State with the help of society (companies and citizens) to enable the swift resolution of conflicts, without the mandatory intervention of the judge.
In other words, the role of the State is to encourage self-composition, as a true filter and catalyst for jurisdictional provision and, for this reason, it must also do so outside the Judiciary. The adoption of public policies that encourage self-composition in basic education and develop a safe environment capable of bringing together and equalizing citizens and companies so that they try to solve problems before using the Judiciary, are fundamental requirements to channel the performance of our Judges where in fact it is needed.
The mismatch can increase in the current health crisis. The social and financial impacts resulting from the reflexes generated by social isolation and in some extreme cases by lockdown, aggravate conflicts in society. Event and travel cancellations, changes to regulations by provisional measures, contractual breaches, financial insufficiency and friction in labor relations, are just a few examples of the discussions that should be absorbed by the Judiciary Power already saturated by the current demand.
The legal universe needs changes in mindset that favor access to justice in a broad way and sometimes outside the umbrella of the Judiciary. The guarantee of access to the Judiciary is innocuous without a swift and effective resolution of conflicts. The same would be to guarantee access to health and not have enough ICU beds to serve the population; because if every citizen who feels violated in any of their rights asks the State to provide jurisdiction, we will continue with the Judiciary overloaded and unable to respond to the demands that are requested in a swift and efficient manner.
[1] Justiça em Números 2019: ano-base 2019/Conselho Nacional de Justiça – Brasília: CNJ, 2020. https://www.cnj.jus.br/wp-content/uploads/conteudo/arquivo/2019/08/justica_em_numeros20190919.pdf
Available at: https://www.conjur.com.br/2020-out-27/andre-felix-cultura-litigio-sociedade-brasileira
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