By Giuseppe Giamundo Neto and Fernanda Leoni
Although without much detail, Federal Law No. 13,140/2016, which deals with mediation as an alternative dispute resolution method, provided in the sole paragraph of its article 33 that the Public Attorney’s Offices of the Federal Government, the States, the Federal District and the Municipalities, where they exist, may open, on their own initiative or upon request, collective mediation proceedings for disputes related to the provision of public services.
Presented as a novelty from a general regulatory standpoint, the possibility of collective dispute mediation could already be seen in some specific spheres — such as Labor Law and regulatory agencies — as a specific administrative procedure aimed at individual or collective disputes mainly involving the users (consumers) of these services, whether provided directly by the State or under a concession regime.
Advantages and obstacles
According to the text of the Substitute Bill No. 7,169 of 2014, which preceded the law, the advantages of this procedure would lie in the possibility of “1) solving the problems identified collectively and quickly; 2) the participation of public service consumers, through associations, in building the consensual solution, which enables a settlement that effectively meets the interests of the population, who are the recipients of the public service; 3) reducing the number of lawsuits; etc.”. It is indeed an instrument with the potential to reduce litigation, which is heavily burdened by lawsuits discussing this type of activity, particularly its quality.
Despite the instrument’s ability to reduce complaints related to public services — especially those used by a wide range of consumers, such as water supply, electricity, mobile telephony, etc. — and the possible advantages arising from this, there are still few consistent experiences. Part of this difficulty in putting it into practice may be related to the lack of more complete rules, and the instrument is seldom seen as a space for innovation, being regarded instead as an obstacle by the public administration.
This reluctance can be understood in light of the debate over legality that many alternative dispute resolution methods went through when adapted to disputes involving public bodies and entities. The recurring argument that disputes with the public administration involve non-disposable rights and, consequently, the impossibility of negotiation may discourage thinking about new ways of using settlement mechanisms.
On the other hand, specifically with regard to public services, this debate seems to take a back seat. Meeting quality standards and keeping tariffs affordable are legal premises long established in our system, so resolving disputes generally related to these aspects is far from a disposable interest and, even when it affects specific groups of users, does not depart from the general public interest in offering quality services, whether or not they are delegated to the private sector.
In our view, the advantages outweigh the risks of innovation. In addition to the speed of responses and the savings immediately seen in resolving any dispute through administrative (or non-judicial) means, other possible advantages of this type of settlement include the possibility of devising solutions tailored to the specific case, an improved public-private relationship and greater citizen trust, broader social participation, the promotion of a culture of dialogue with the government and, of course, a reduced burden on the Judiciary.
In terms of experience with the institution, Luciane Moessa de Souza highlights that the instrument has been used by the Rio Grande do Sul State Agency for the Regulation of Delegated Public Services (Agergs) since 2010, noting that the issues most frequently discussed are “investigation of electricity meter fraud, electricity theft and compensation for damage caused by interruptions in electricity supply” [1]. The data collected by the author show a positive rate of effectiveness of the mechanism in resolving disputes, with very few cases in which the concessionaires chose to appeal or take the dispute to court.
Also in the field of regulation, Kátia Junqueira highlights mainly the experience of federal agencies [2]. The National Electric Energy Agency (ANEEL), which even has its own body to deal with the subject (the Superintendence of Sector Administrative Mediation), conducts about 30 mediations a year, 90% of which reach some agreement. The National Telecommunications Agency (Anatel) also has outstanding experience in the area, especially on competition matters. Finally, the role of the National Water Agency (ANA) is highlighted in disputes involving the use of water for navigation or for supply for electricity generation.
On the other hand, analyzing cases examined by the Federal Administration Chamber of Conciliation and Arbitration (CCAF), Silvia Di Salvo notes that “the statistics reveal that disputes related to public policies and collective social rights are still treated marginally in terms of self-settlement, which shows that the Public Administration has not yet been able to assimilate mediation as an instrument that transforms its relationship with citizens” [3]. The data reveal that the federal administration, although often more institutionally structured, still does not report significant experiences, which certainly affects the other levels of the federation, given its role in driving legal solutions.
Although not linked to public services, as an experience of collective mediation it is worth highlighting the São Paulo municipal regulation on the possibility of resolving disputes involving land use and occupation, complementing the provisions of the São Paulo Strategic Master Plan. Under Decree No. 43,384/2003, residents organized in groups or associations may propose to the Sub-prefecture the resolution of disputes related to urban space, which will be submitted to and widely discussed at a public hearing, even allowing debate on the need to amend legislation, to be later submitted to the City Council.
Thus, although the path is not yet paved, Federal Law No. 13,140/2016 opened the door to improving mediation in the public administration also for collective disputes related to the provision of public services, whose experiences, still isolated, show a significant space for innovation and experimentation with alternative dispute resolution methods involving the government.
[1] SOUZA, Luciane Moessa de. Meios consensuais de solução de conflitos envolvendo entes públicos: negociação, mediação e conciliação na esfera administrativa e judicial. Belo Horizonte: Editora Fórum, 2012. p. 348.
[2] JUNQUEIRA, Kátia Valverde. Mediação – Instrumento eficaz para a eficiência regulatória. Revista EMERJ, V. 14, no. 56, p. 116-117, 2011.
[3] DI SALVO, Silvia Helena Picarelli Gonçalves Johonsom. Mediação na Administração Pública: O desenho institucional e procedimental. São Paulo: Almedina, 2018, p. 140.
Published by ConJur.com (in Portuguese)
