O dilema do negociador e o acesso à justiça na mediação com a Fundação Renova: implicações ao processo indenizatório pelo rompimento da Barragem de Fundão e o modelo de claims resolution facilities como abordagem para o manejo de conflitos

Abstract

The collapse of the Fundão dam is one of the greatest socio-environmental calamities. In order tospeed up the repair and compensation process, the Fundação Renova was created, an entity resposible for the Me-diated Indemnity Program (MIP), designed to deter-mining the amounts to be paid. Faced with the ex-posed situation, this paper analyzes the obstacles of 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, by not incorporating the pricipled negotiation and by the effect of the negotiator's dilemma, culminating in agreements unfavorable to Renova and those im-pacted, an issue that, if not addressed, can be repro-duced in other claims resolution facilities. As a mech-anism to reverse this result, it is proposed to expand mediation, making it in charge of coordinating all communication with parties and eligibility to MIP, promoting, at the same time, relationship between the foundation and those affected, with the condi-tions for a mutual gains procedure.