Revista da EMERJ - V. 21 - N. 3 - Setembro/Dezembro - 2019 - Tomo 1

257  R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 241-271, set.-dez., 2019  TOMO 1 cionado se acostumou a congestionar os tribunais para buscá-la, pois as supostas virtudes institucionais são indiscutíveis 70 . Como bem ressaltam Fiss e Resnik 71 , a questão central está em defi- nir qual é o papel a ser desempenhado pelo magistrado quando a solução para o conflito não resulta de um processo adjudicatório. Inserida no contexto judicial, a mediação se torna instrumento a concretizar o dogma da efetividade da atividade jurisdicional, tendo o de- ver de funcionar direcionada à justiça 72 . Não pode, entretanto, ser vista como uma solução milagrosa para o acúmulo de processos nos tribunais 73 . 70 “Modern societies are very much linked to the idea of litigation. A hidden rule seems to exist in the sense that the more advanced a society is the highest level of litigation it suffers. This increase in the level of litigation amounts to a sort of “liti- gation explosion” that has traditionally been linked to State Courts. This explosion is said to put the whole Judiciary System under pressure in so far the volume of disputes brought before State Courts increases, the proceedings become more and more lengthy and the costs incurred in such proceedings also augment. The goal to tackle this explosion underpins most of the reforms that modern national civil procedure laws have suffered in many countries for the last two decades and fuels the growing support of ADR devices in many parts of the world in an effort to make the procedure system more efficient and affordable for the parties. This explosion was first reported in USA and now is fully ascertainable in many parts of the world where litigation grows steadily. In Europe it actually entails growing concerns about the maintenance of the level of quality of the Judiciary System despite the budgetary efforts done for many years by the several European Governments in their judicial system, and consequently therewith of the full preservation of the principle of access to justice in the continent. This situation raises the issue of ascertaining to what extent the current situation of considering the principle of access to justice solely referred to access to State Courts justice may be maintained or a move towards a broader understanding of this principle in the sense of embodying a joint reference to State Courts and ADR devices is under way. The solution provided to this question will tailor the notion of justice in the XXI Century”. ESPLUGUES, Carlos. Access to justice or access to states courts’ justice in Europe? The Directive 2008/52/EC on civil and commercial mediation, in Revista de Processo, vol. 221, Jul/2013, São Paulo, Revista dos Tribunais, p. 303. 71 FISS, Owen. RESNIK, Judith. Adjudication and its Alternatives. An introduction to procedure, New York: Foundation Press, 2003, p. 431. 72 “The result of the reformulating of adjudication is that it begins to resemble, incorporate, or subsume ADR. Illustra- tive is the 1994 proposed report of the Long Range Planning Committee of the Judicial Conference of the United States, which in its chapter “Adjudication,” defines that term as “encompass [ing] a number of different functions, from managing the preliminary phases of a case and appeals to concluding proceedings ....”. Thus, changes are coming from within and without, moving the forms of decision making. (...) As this century draws to its end, we can observe the melding of ADR into adjudication, and then the narrowing of ADR and its refocusing as a tool to produce contractual agreements among disputants. The focus is shifting from adjudication to resolution. Frank Sander’s lovely image of the accessible, multi-doored courthouse-with one door wide open for adjudication-has now been eclipsed. The door to the twentieth century’s version of adjudication is closing”. RESNIK, Judith. Many doors? Closing doors? Alternative dispute resolution and adjudication, 10 Ohio State Journal on Dispute Resolution, 211, 1995, acesso via westlaw.com em 15 de março de 2012. 73 “However, in the current Brazilian scenario, we could hardly assert that ADR, in general, and mediation, specifically, could play a role in relieving our Judiciary from its dramatic burden. The reason for this is the kind of litigation that exists in Brazil. The vast majority of cases are filed by individuals (thousands of them!) against Federal, State and Municipal Authorities, Banks, Telephone and communications companies, among others. These cases deal with the so-called “indi- vidual homogeneous rights” of large groups of people, i.e. bank clients, users of telephone services, public services etc... It sometimes happens that the same cause of action is brought before State Courts by thousands of people and the main issue is a quaestio juris. 
In these cases, the solution of the disputes, which in fact are a legal controversy, has to come from the Judiciary, and preferably from the most important Courts of the Country: Superior Tribunal de Justiça e Supremo Tribunal Federal. These decisions are important precedents which provide guidance to other Courts, other judges and so- ciety, in general”. WAMBIER, Teresa Arruda Alvim. Mandatory Mediation: Is It the Best Choice?, in Revista de Processo, vol. 225, Nov/2013, São Paulo: Revista dos Tribunais, p. 417.