Judges as mediators?

Abstract

This article aims to investigate whether the judge's performance in a mediation hearing, provided for in article 334 of the Code of Civil Procedure, violates the principle of confidentiality of mediation when the judge-mediator is responsible for judging the dispute in the eventual impossibility of reaching an agreement between the parts. To this end, we will present a meaning of access to justice beyond the idea of ​​access to the Judiciary and the perspective of mediation. Next, an overview of the situation of the Judicial Centers for Consensual Conflict Resolution (CEJUSCs), responsible for holding the aforementioned hearing, is provided, as well as an analysis of the mediation hearing provided for in article 334 of the Code of Civil Procedure. Next, finally, the principle of confidentiality of mediation is analyzed and it is concluded that there is incompatibility between the role of the judge and that of the mediator in cases in which he comes to sentence, ultimately proposing a change in article 144 of the CPC. The research uses bibliographic review as a method, followed by qualitative analysis to arrive at a normative proposition.