It was not forgotten, the legislator is right! Procedural fine inapplicability in case of unjustified absence on mediation hearings

Abstract

The Civil Code Proceedings recognized the multiport system of conflict resolution, encouraging consensual disputes dictum and imposing mandatory, as a rule, conciliation or mediation hearings. The unjustified absence of either party to the conciliation hearing shall be deemed to be an offense against the dignity of justice, which shall be punished with a 2% fine on the economic advantage or case value, but in this article it is asked whether the unjustified absence of the mediation would lead to the same penalty. Two hypotheses were investigated, first one related to the legal impossibility of imposing a fine due to lack of legislative foreknowledge, and second, impossibility of the same sanction, due to nature, characteristics and objectives of the mediation. Using a hypothetical-deductive method, the hypotheses were developed through a bibliographical review and legislative analysis, having as theoretical framework the current Proceedings, culminating with confirmation of both hypotheses.