When it comes to Brazilian justice, judicialization is a matter of great importance. Although it may seem redundant, the information is revealing, as it points to a society that much more often opts for going to court than for less demanding alternatives from institutions, such as mediation or conciliation.
One of the branches of law that has been most demanded in the Judiciary is supplementary health. In 2021, more than 342,000 new cases related to health entered the courts, of which 149,000 concerned the supplementary aspect. It is essential to remember that in many cases these are urgent disputes that can involve complex issues and even deal with life or death.
Although they need a speedy resolution, these cases did not always need to reach the courts. After all, if these processes ended up in the Judiciary, it is because all other solutions presented by society have failed, including (and perhaps especially) those based on dialogue.
This was the diagnosis made by the minister of the Federal Supreme Court, Toffoli daysin an online event broadcast by TVConJur this Wednesday (14/9). The Legal Journey of Supplementary Health, organized by the Institute of Supplementary Health Studies (IESS), in partnership with the Permanent College of Directors of State Schools of the Judiciary (Copedem) and the electronic magazine Legal Advisersought to raise discussions on conciliation mechanisms to mitigate the demand in relation to actions against private health care plans.
“The more text in the Constitution, the more judicialization there will be”, said Dias Toffoli. “When you bring to the normative text the possibility of discussing all administrative acts, all contracts, all actions in the private or public world, you are giving more possibility to judicialize the issues.”
Also according to the minister, Brazilian society lives immersed in what he called the “culture of res judicata”, in which companies, people and institutions value only the solutions provided by the highest levels of the Judiciary, ignoring mediation and conciliation and contributing to the overload of judges across the country. For Toffoli, the problem starts early; even in college, law students are prepared for litigation, not conciliation, he argued.
Any resolution to the problem of judicialization of supplementary health needs to go through a change in society’s mentality in relation to the culture of res judicata, he said. With this, prosperous conditions for mediation would be created and, thus, Justice would be less burdened.
The event also had the participation, as debaters, of the executive superintendent of the IESS, Jose Cechinand the judge Candice Jobim, former supervisor of the CNJ Health Forum. The mediation was carried out by the president of Copedem and general director of the Escola Superior de Magistratura Tocantinense, judge Marco Villas Boas.
For Candice, in the name of greater efficiency in resolving cases, “there must be something that encourages the magistrate to go after these solutions”. In this sense, she mentioned the event as a possible support point for this purpose.
Cechin, on the other hand, stated that the importance of discussing the issue lies in the fact that judicialization “has a high cost for the Public Power and, therefore, for society, for all of us”.