Congress Presentation · 2025

Beyond
Judicial Review:
Mediation & Conciliation
in the Brazilian Supreme Court

An institutional approach to the procedural
transformation of Brazil's highest court

Damares Medina
Professor of Constitutional Law
Researcher, PROJUS / ICONS · judx.com.br · icons.org.br
Brazilian Supreme Court building

The Transformation of Brazil's Supreme Court

1
Historical Approach
The STF has historically been marked by hermeticism and judicial verticality — a closed, top-down model of constitutional adjudication.
2
Current Shift
The Court now increasingly experiments with dialogical and participatory practices, opening new procedural avenues beyond classic adjudication.
3
Institutional Tension
A growing tension between the STF's adjudicative authority and emergent forms of procedural openness — neither linear nor pacified.

"This transformation demands both historical contextualization and analytical precision. Understanding it requires mapping not only what changed, but how the Court repositioned itself within Brazil's democratic architecture."

Historical Context:
From Hermeticism
to Openness

The roots of this transition trace to the 1980s, during Brazil's redemocratization — a conscious institutional effort to open the Court to society.

  • Adoption of laws on abstract judicial review
  • Introduction of amicus curiae briefs
  • Implementation of public hearings (audiências públicas)
"While these mechanisms formally expanded the deliberative perimeter of constitutional adjudication, their practical reach remained limited and often curated." — Fabiana Luci de Oliveira
Democratization movement

Recent Innovations in Participatory Justice

1
Mediation Sessions
Structured dialogue between parties designed to reach mutually acceptable solutions outside the strict adjudicative framework.
NUSOL
2
Conciliation Hearings
Court-facilitated negotiations aimed at resolving complex disputes — particularly structural cases — without formal final adjudication.
NUSOL
3
Contextualization Hearings
Audiências de contextualização providing deeper factual and technical understanding of complex constitutional cases.
NUSOL
These mechanisms are organized by the Núcleo de Solução de Conflitos (NUSOL), created in 2020 under the presidency of Justice Dias Toffoli — the STF's first dedicated conflict resolution unit.

The Debate: Benefits vs. Concerns

Proponents Argue
  • Rationalizes structural and polycentric litigation
  • Fosters federative and institutional dialogue
  • Produces context-sensitive, durable solutions
  • Overcomes the rigidity of traditional adjudication
Critics Warn
  • May erode the constitutional authority of the Court
  • Problematic in cases with structural power asymmetries
  • Often lacks procedural transparency and consistency
  • Insufficient normative safeguards for high-stakes cases
At the heart of this debate lies the concept of processo estrutural — frequently invoked to justify these innovations, yet remaining elusive in definition. Is it a genuine procedural category, or a rhetorical reformulation of longstanding institutional dilemmas?

Empirical Analysis: 123 Cases of Dialogical Practice

123
28
ACOOriginal Jurisdiction
27
ADI / ADPF / ADOConstitutional Review
21
ARE / REExtraordinary Appeals
13
RclReclamações
12
SL / STPUrgent Injunctions
9
OtherMS, MI, AO, AR, Pet

This taxonomy reflects the gradual blending of concentrated and incidental models of constitutional review — an irreversible horizon in a system where the same issue may be adjudicated through multiple procedural avenues.

Brazil territory

Thematic Diversity of
Dialogical Cases

Public Health & Environment
Vaccination plans Forest reserve protection Indigenous land demarcations Indigenous reparations
Economic & Fiscal
Oil royalty distribution Fundef/Fundeb disputes Fiscal recovery regimes CIAF / CAUC registers Orçamento secreto
Infrastructure & Boundaries
Railroad development Energy regulation (gas pipelines) State boundary disputes Public servant compensation

Asymmetries in Dialogical Practice

Geographic Disparities

São Paulo, Rio de Janeiro, and Paraná are disproportionately represented. The North and much of the Northeast remain largely absent from these dialogical spaces.

Who dialogues with the Court?
Whose voices are institutionally amplified?
How federalized is this "pluralization"?

Justice Cases
Fachin
18
President
17
Toffoli
15
Zanin
15
G. Mendes
14
Dino
10
A. Mendonça
9
C. Lúcia
6
Others
1–5

Top 5 justices account for ~65% of all dialogical proceedings.

Procedural Inconsistencies

190
Days — Longest Negotiation
Justice Rosa Weber's cases averaged 190 days of dialogical process
11
Days — Shortest Negotiation
Justice Cristiano Zanin's cases averaged just 11 days — a 17× gap
123
Total Cases — NUSOL
Mapped by the Conflict Resolution Unit across 2020–2024

Many agreements were reached without contextualization hearings or technical meetings, suggesting that a significant portion of settlements occurred through informal or ad hoc procedures rather than structured, deliberative processes.

This reinforces the need for clearer institutional parameters — both to ensure procedural consistency and to prevent the dialogical turn from becoming yet another vector of judicial concentration driven by individual ministerial discretion.

Conclusion

Democratization
or
Statization?

  • Who is being heard?
  • Which interests are being amplified?
  • What institutional and regional asymmetries shape access?
The pluralization of Brazil's constitutional jurisdiction remains largely internal to the state. It has not yet crossed the threshold into democratization of access or voice. The challenge is not how many dialogical techniques the Court deploys — but whom they serve, and whom they exclude.
People before Supreme Court
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