A conduta dos magistrados no tocante à conciliação em audiências de instrução e julgamento: uma análise empírica nas varas cíveis da comarca de Juiz de Fora/MG

Abstract

This article examines from a critical perspective the application of article 350 of Civil Process Code, which requires judges to attempt conciliation at the beginning of hearings. Starting from the idea that New Access-to-Justice Approach recognizes the need to relate and adapt the civil process to the type of dispute (Cappelletti and Garth), it is questioned if the performance of the magistrates as conciliators could lead to an obstacle to access to justice, given the fact that impartiality would be distort and that his figure as a judge of the cause could lead to coercion of the contenders to reach agreement. In addition to the literature review on the subject, a qualitative exploratory research was conducted, consistent on indirect observation of hearings in the civil courts of Juiz de Fora. It was concluded that, in the cases analyzed, the magistrates used intimidating appeals (pre-trial and exploitation of the disadvantages of the judiciary, such as the delay and the risk brought by the sentence) to embarrass the parties to reach agreement, which demonstrate the inadequacy of the magistrate for the role of conciliator. In view of this, in compliance with the principles of impartiality and access to justice, and taking into account the multiport system adopted by CPC/15, the aforementioned provision should be interpreted restrictively, so that the judge should not act as conciliator, but only report to the litigants to inquire if there is a settlement agreement and let them negotiate freely without intervention.