THE NEGOTIATOR’S DILEMMA AND THE ACCESS TO JUSTICE IN THE MEDIATION WITH FUNDAÇÃO RENOVA: IMPLICATIONS TO THE COMPENSATION PROCESS FOR THE BREAKDOWN OF FUNDÃO DAM AND TO CLAIMS RESOLUTION FACILITIES MODEL AS A CONFLICT MANAGEMENT APPROACH

Abstract

The collapse of the Fundão dam is one of the greatest 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 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 impacted, an issue that, if not addressed, can be reproduced in other claims resolution facilities. As a mechanism 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 conditions for a mutual gains procedure.