As cláusulas escalonadas de mediação e arbitragem: acesso à justiça e desjudicialização das relações contratuais

Abstract

The staggered mediation and arbitration clauses are contractual stipulations which define, from the initial structure of the contract, the sequential use of consensual and adjudicatory mechanisms, particularly mediation and arbitration, in the treatment of conflicts that may arise in the course of long-term contractual relationships. Adherence to these clauses implies the treatment of such claims via extrajudicial means. This exploratory legal research has the general objective of analyzing the staggered mediation and arbitration clauses as mechanisms

for resolving disputes in contractual relations, as well as their reflexes in the process of de- judicialization, considering the principle of access to justice and the contemporary model of

offering conflict-resolving and pacifying mechanisms. This qualitative investigation is developed with the use of research techniques of a bibliographic, documentary and empirical nature, based on an interdisciplinary study. Considering the collected and analyzed data that suggest the adequacy of the judicial management policy for the proper provision of mediation and conciliation mechanisms, as well as the strengthening of the partnership between the Judiciary of the State of Maranhão and the Chambers of Mediation and Arbitration, in order to put into effect what was established in the TJMA Resolution No. 11/2017, it is concluded that there are two environments for the treatment of conflicts of a contractual nature: the judicial and extrajudicial environments; that there are contractors who use these clauses to deal with their impasses extrajudicially and that the handling of demands is more successful when carried out by the Chambers of Mediation and Arbitration than by the Judiciary.