O dilema do negociador como barreira ao acesso à justiça na mediação com a fundação renova: implicações ao modelo de claims resolution facilities

Abstract

The collapse of the Fundão dam represents one of the greatest national and global socio-environmental calamities. In order to speed up the repair and compensation process, the Fundação Renova was created, an entity resposible for the Mediated Indemnity Program (MIP), designed to determining the amounts to be paid. Faced with the exposed situation, this research analyzes the obstacles contained in the negotiator's dilemma to access to justice, through mediation, based on the adversities found in MIP. From the gathered elements, stands out that, despite presenting itself as a win-win approach, the MIP, due to the effects of the negotiator's dilemma, went into zero-sum performance, by not incorporating the pricipled negotiation, culminating in agreements unfavorable to Renova and those impacted, an issue that, if not addressed, can be reproduced in other claims resolution facilities. As a propitious mechanism to reverse this result, an mediation expansion is proposed, making it in charge of coordinating all communication with parties and eligibility to MIP, promoting the development of relationship between the Foundation and those affected, and, at the same time, promoting the conditions for a procedure of mutual gains.