Family Mediation in the context of shared custody

Family Mediation in the context of shared custody

 PARTICULARITIES OF FAMILY MEDIATION

Tania Almeida
Lecturer and researcher in Conflict Mediation and Dialogue Facilitation. Neuropsychiatrist and Family Therapist. Guest professor at the Master's Degree in Judiciary at the Fundação Getúlio Vargas Law School. Master's student in Conflict Mediation at the Institut Universitaire Kurt Bösh. Director-President of MEDIARE – Dialogues and Decision-Making Processes. 

Initial Considerations – the new family configurations and their legitimacy

The social history of the family [1] it has the dynamism corresponding to each moment of its existence and includes changes in the family configuration and in conjugality with a speed consistent with each era. Man tries to adapt to the celerity of changes that characterizes contemporaneity and seeks new solutions for new events, in a careful attempt to reconcile them - new events and new solutions.

The family at the beginning of the XNUMXst century is plural in its configuration and legitimately includes nuances in its composition, functioning and values. Couples with or without children, married or not, same-sex or hetero-affective unions; people who are alone and independent from a marital or parental partnership articulate with each other or with the surroundings, dissimilarities in terms of creed, ethnicity, culture, language, age and socioeconomic and cultural possibilities build increasingly unique families.

The standard model applied to the family configuration in the last century – father, mother and children in the same physical space, living in harmony – was replaced by different modalities, maintaining, however, the idea of ​​harmonious coexistence. The model that was previously the rule, in terms of prevalence, is no longer so. What was once an exception, today stands out in numerical terms.

This interactive mosaic composed of the most different people, contexts and drawings of coexistence starts to request unique readings and approaches to its particularities. It is a requirement of contemporaneity to accept differences as legitimate and, consequently, to recognize legitimacy in each unique family composition.

The family as an interactive system and as a social context for the construction of subjects

Understanding the family as an interactive system implies considering the social and functional interdependence between its members. Conjugal couples – husband and wife – and parental couples – father and mother – are organized in the same social system, albeit in different physical spaces. A pair can be independent of the other or keep close articulation and coexistence with the other.

It is certain, however, that this context where children are integrated, from two-parent or single-parent families, constitutes a granary for the social growth of new subjects, who expand the bonds of coexistence and interdependence with their presence. Undoubtedly, this scenario that first receives individuals after their birth and that is willing to socialize them for life is extremely relevant, with all the responsibility and support that this task implies.

The family life cycle [2], which begins at the moment when the family project is put into practice and ends with the death of the generation that inaugurated that cycle, includes different stages. These stages demarcate the different moments in the life of its members – birth, growth, entry into the job market and leaving home for their children; professional advancement, retirement, children leaving home and aging, for parents – and they are the setting for issues aligned with these moments.

Interventions in the family context must always consider their positive and negative repercussions on this universe of people, especially on their children, subjects in training, and on their different characters in their particular moments of the life cycle. On each family in its special moment and with its special group of members, our interventions will have different repercussions.

The adequacy of the multidisciplinary approach in approaching issues related to the Family

In such a diverse context, multidisciplinary interventions gain special applicability. First, because any intervention, on any of the family members, will have repercussions on everyone: systemic view of the family [3]. Second, because in such a diverse system, no issue is monothematic. No issue is purely legal, economic, social or emotional. Even if the issues are monothematic in origin, their repercussions will always be capillarized and multifaceted when they have the family as a scenario.

The lens of those who intervene on family issues, especially in controversial situations, needs to be multifocal. The multidisciplinary look at family controversies makes it possible to identify their different nuances and map the prevailing aspects in their construction, with the objective of choosing the best approach strategies. The identification of these prevalent aspects in the construction of family controversies will make it possible to focus on them as primary targets of the elected intervention.

As experts, we are responsible for the approach we choose and that we indicate to address a family issue, as well as for your driving strategy. And, consequently, we are also co-responsible for the results that the intervention will bring about.

Litigation as a form of bond

As a social relationship culturally determined to have continuity over time, the family relationship sometimes includes the non-acceptance of the dissolution of their bond. When subjects who are part of family relationships choose to break with their affective or functional bonds, they manage the uncomfortable situation of being going against the grain of the culture.

Going against the grain of culture implies being called to attention, being discredited and disqualified by some with respect to a certain choice. For this and other reasons, the emotional turmoil caused by family disagreements in the people directly and indirectly involved, including those in the social and cultural environment, seeks and finds countless ways out. One of these outputs is maintain the link through litigation[4].

It is we, the professionals in this area, who must identify the existence of litigation as a form of bond, with a view to making indications of intervention that do not feed or ignore this peculiar way of relating.

In this direction, the expansion of our knowledge and the increasing tenuity of boundaries between disciplines have made the need for multi and interdisciplinary approaches imperative. We are increasingly working as a team and improving our knowledge to take care of the issues that arise in a holistic way.

Social networks and gender studies

Other themes that have been linked to studies on the family are: relevance networks or social networks and the peculiarities linked to the genre - male and female.

To all that was said above, we need to add: (i) that families, as well as other groups where we are socially inserted, support us as if let's form a network; (ii) that each family has its particular system of beliefs and values, socially constructed in a certain culture and at a certain time; (iii) that each individual in each family is also socially differentiated, even though they belong to the same family niche; (iv) that to the masculine and feminine that biologically mark us, styles of acting in life are articulated, as demonstrated by studies on gender, including greater or lesser subjectivity, greater or lesser objectivity, greater or lesser proactivity, among others distinctions.

More unique, impossible! We are not only physically impressed by our dissimilarity. Functionally, we can also be ecstatic with our differences and possibilities.

Socially, we form groups, in addition to the family, which are our networks of belonging [5] – work groups, friends, religious groups, groups dedicated to a particular sport or fans of a particular sports club, professionals, political ideas, and many others. With these social groups we maintain a greater or lesser degree of fidelity and a certain and limited autonomy. We cannot distance ourselves too much from their beliefs and values ​​without negotiating this distance, under penalty of non-acceptance or exclusion by the group.

The physical, emotional and social repercussions of a purely legal approach to family issues

It was necessary to reach a moment of coexistence that legitimizes and enhances differences and themes such as co-authorship, interdependence, multidisciplinarity and multifactorial causality in order to realize the insufficiency of monodisciplinary approaches in relation to issues pertaining to families.

When family issues result in apparently irreconcilable conflicts, the judicial route has been the way to choice to solve them. Moved by a historical learning based on a relationship of dependence and trusting submission, man has turned to the State to resolve his family disagreements.

When the first and natural option for the composition of differences – direct negotiation – seems to have exhausted its effectiveness, this man turns to the Judiciary. The State has been so quickly activated by subjects whose issues seem to them to be unsolvable through direct negotiation that, for some, it has become the first and recurrent option.

This Judiciary so quickly activated has done the best within the limits of its spectrum of action and has realized, in recent decades, that it lacks the look and complementary action of other disciplines to more adequately serve, especially, the families that seek it.

Given the legal aspects of the controversy, sometimes non-existent or of lesser relevance, these families will need to manage, from there, the insufficiency that the merely legal approach has to deal with their issues and the discomfort naturally caused by solutions that give reason to some and not. to others.

Biological (physical health), psychological (affective and mental health) and social (interactive health) are the repercussions of court decisions on families in disagreement or conflict. They, the sentences, create an apparent solution for the present time and a certain rupture or social distance for the future coexistence of these families[6]. 

The Mediation Institute

Mediating conflicts is an ancient and pacifying act, the first choice of eastern peoples in the management of their differences. For Confucius, direct dialogue should invariably lead a disagreement to a solution.

When the Americans structured, in the seventies, a method of self-composition that they called Conflict Mediation, allowed people to resume the exercise of their authorship and decision-making capacity, as well as the responsibility for decisions built in partnership.

Thought as a rite, the structure of Mediation uses a third party in its conduction, guided by the task of helping the people involved in the process to rescue the dialogue between themselves, as if in a direct negotiation. This attempt to reproduce a direct conversation with the objective of finding solutions of mutual satisfaction gave the institute the synonym of assisted trading.

Who assists the Mediation is the mediator, in the capacity of coordinator of the dialogue between the intermediaries. Its performance must be characterized by the qualified conduct of dialogue, but not the solution to disagreement. Acting in this way requires specific training, skills to do so and permission from mediators to do so.

Elected by all the people involved in the dispute, this third party qualified for this task must act impartially and independently with respect to the mediators and the subject that brings them to the Mediation, as well as with diligence, credibility and competence in conducting the dialogue. His 'expertise' translates into conducting self-compositional dialogues. To act as a mediator, there are no restrictions regarding the profession of origin or academic training.

Those with decision-making power and sufficient knowledge to do so sit at the Mediation table. When this knowledge does not have a satisfactory quality for an informed decision, consultation with experts on the subject needs to be carried out by the intermediaries. It is up to the mediator to indicate this need and ethically abstain from offering technical opinions, even on topics of his/her knowledge.

Therefore, the choice of a mediator does not need to be based on their special knowledge of the matter that motivates the Mediation, as it is not up to them to deliberate or give an opinion. However, some knowledge is necessary, in order to enable pertinent questions and an adequate diagnostic view on the parties' need for information about what they are deliberating.

The role of the mediator can be solo or in pairs, the usual modality, which makes it possible to complement general and technical knowledge, gender and skills in conducting the dialogue.

Conflict Mediation is a method of resolving disputes that aims at self-composition accompanied by the preservation of the social relationship. The preservation of the social relationship is fostered by the co-authorship of the intermediaries in search of solutions of mutual interest and benefit. The interests, needs and values ​​brought by the mediators to Mediation are the main guides of the agreement to be built. It is the mutuality of satisfaction with the results of Mediation that places this instrument in the group of resources win-win dispute resolution, which contributes to the preservation of social relations.

Autonomy of will, a fundamental principle of Mediation, also contributes to the preservation of the social relationship. Only those who so desire initiate, remain in Mediation and finish it. In order for the autonomy of the will to be put into practice in the choice of the institute, information about its benefits, its operability and its ethical principles are offered before its beginning – pre-mediation. The synergy between the autonomy of the will, the co-authorship of solutions and mutual satisfaction result in a natural commitment to what is agreed.

The special harmony of Mediation with family issues

The previously listed particularities that characterize family issues find special treatment in Mediation.

The multidisciplinary look.

Mediation is a transdiscipline that feeds on Law, Psychology, Philosophy, Sociology, among other knowledges, and uses, for coherence, a multifocal lens in the approach, understanding and mapping of the controversy. The need to identify the different aspects that make up family dissent is met by the very nature of the institute, which guides its practice.

The systemic view.

This is one of the epistemological markers of this method of self-composition. He invites us to systemically evaluate the controversy and to perceive it as part of a chain of events, with previous and subsequent events, which need to be considered and taken care of, especially in the case of family relationships.

The systemic view also makes it possible to include the mediator as an object of analysis with a view to identifying contributions to the greater or lesser fluidity of the process in their performance, with the possibility of continuous improvement.

The preservation of the social relationship.

Focus on the future [7] and in the preservation of the social relationship make Mediation the instrument of choice for relationships continued over time, and among them, the family with special distinction. The social scope of this purpose is immense and helps to create a more favorable scenario for future coexistence and dialogue, as well as fluidity in the growth of subjects in training – children and adolescents. The preservation of the social relationship deconstructs the fantasy of the rupture of important ties and contributes to the fact that litigation is no longer a resource to maintain the bond and dialogue.

Authorship, mutual satisfaction and commitment to the agreed.

Returning to individuals who are part of a family history a protagonist posture – authors and executors of the solutions to their problems – enables them not only for the present situation, but, above all, for the future. the bias win-win mutual satisfaction in alliance with authorship will dispose these individuals to fulfill the agreement, enabling the recovery of trust and the maintenance of dialogue as a primary resource for negotiating future differences. The deflation of new conflicts and the prevention of new lawsuits are natural consequences

The analysis of costs and benefits of the repercussions of the agreement on the individuals directly and indirectly involved and their physical and mental health.

Acting as an agent of reality is the task of mediators. Some Mediation procedures work in this direction, such as the analysis of the costs and benefits of the agreement on those directly and indirectly involved in the process. The analysis of these repercussions and the possible corrections of the solutions chosen as a result of this analysis contribute to the preservation of the physical and mental health of family members, as well as to the health of their interaction and future coexistence.

Respect for the uniqueness of subjects and their questions.

The dedication of Mediation to the questions formulated and brought by individuals, the way they are presented, and the possibility of expanding and discriminating them on an objective agenda - the matter - and on a subjective agenda - the relational interaction -, in According to the theme and the peculiarity of the relationship between people, it allows respecting the different natures of family configurations, diversity discussed above, as well as treating them with legitimacy. The focus on interests and needs – without compromising the margins of Ethics and Law – legitimizes the subjects and takes into account their particular issues, their moment of life, and their cultural values.

Attention to the social networks of mediands.

In Mediation, we find permission to help mediatees in the parallel dialogue they need to establish with their networks of relevance – relatives, friends, lawyers. As Mediation works by giving voice back to those involved and listens to them directly, it allows them to bring to the table not only their desires, but also the desires of those who welcome them in their troubles, their network of pertinence. In the Mediation process, there is permission for the voices of the relevant networks to appear, even in person, freeing the mediates from the task of representing them and enabling them to negotiate with their peers a change of posture in relation to this other with whom they are in conflict. .

Mediation in separations and divorces

I share with Florence Kaslow [8] the idea that there are multiple divorces. To Florence and her partner Lita Linzer, co-authoring the book The Dynamics of Divorce, there are different levels of mutual commitment in marriage and, consequently, they will be the subject of negotiation in separation and divorce when the marital or convivial relationship ceases to exist.

People marry and divorce affectively when they decide to unite and when they decide to break that union with someone. As a result, we get married and divorced. financially – by sharing and dividing our savings and assets; physically – when sharing and dismembering a physical and convivial space; socially – by sharing and dissociating our friends and relatives; and finally, psychically – by sharing and deconstructing the project of being a family that would keep a structure and a coexistence in time and space untouched.

These different marriages – emotional, financial, physical, social and psychic – occur almost simultaneously. To unmarry, however, these different outcomes take place at different times and not simultaneously for ex-spouses or ex-partners. Conclusion: a lack of harmony at the time of separation that makes it possible to expand the disagreement to levels, sometimes unmanageable and liable to result in litigation.

The performance of a third party that invites pacification and that, at the same time, allows these actors of separation and divorce to remain the authors of solutions about the future of their lives, can help change the future of these people and those with whom coexist.

When there are children, they are the ones who suffer the most from the misunderstanding between the ex-couple. Often, marital divorce contaminates the parental couple, which, in one hundred percent of litigation cases, interrupts the fluidity of communication, which causes the children to be in a state of emotional fraying motivated by the conflict of loyalty.

Mediation enables self-composition based on reflection and the construction of solutions based on information and on the analysis of costs and benefits for those directly and indirectly involved, as well as the rescue of the social relationship between people, especially between father and mother, leaving the children, thus, freed from emotional fraying and free to develop compatible with their moment of life.

Its prophylactic effect is immeasurable and the reach of indescribable social repercussions: (i) it allows the development of children to take place in a more favorable scenario that does not compromise their physical and mental health; (ii) reduces everyone's emotional exhaustion; (iii) improves communication between people; (iv) it enables the learning of a non-adversarial way of negotiating differences and disagreements; (v) encourages the use of dialogue as the primary vehicle of composition for the disagreements to come; (vi) invites us to look to the future; (vii) teaches not to keep the past as a reference for current and future relationships; (viii) it designs a socially peaceful coexistence; (ix) reduces emotional, time and financial costs; (x) reduces the incidence of lawsuits.

Mediation in situations of asset sharing

The moments of sharing are delicate because they make the pain of the loss of a loved one coexist with the contentment for material gains made possible by that loss. The moments of sharing are arduous because they reveal, not infrequently, that individuals united by kinship sometimes keep abyssal affective distances. They need to manage the most different perceptions about the legitimacy of each one in relation to the distribution of the patrimony to be inherited.

Mediation in asset-sharing situations is a quality of negotiation that involves multiple parties and multiple interests and that superimposes interests and affective needs over financial interests and needs. Affections and disaffections are claimed through material values, and whether or not to meet someone's desire can be an objective in the negotiations that occur in this moment of family coexistence.

Alliances and coalitions – unions of one against the other – are established between the people involved in situations of sharing and the disaggregation that may ensue compromises future generations, who inherit not only goods, but also disaffections. The affective life of some families starts to include or intensify the misunderstanding and the distance from these events.

The intervention of a third party with a disposition for impartiality and the ability to transform competition and disaffection into collaboration and respect can positively interfere in the future coexistence between these people. This third party, as a mediator, helps to identify the mentioned interests and needs, as well as to discriminate affective values ​​from patrimonial values, when they overlap.

Mediation and intrafamily violence

The violent act cannot be mediated, but the resulting conflict is. This is the familiar theme of choice for restorative practices.

Intra-family violence affects all family members, as well as the networks of belonging – relatives, neighbors, friends, work colleagues and social groups – in which they participate. Suffering and solidarity and opposition movements bring people together around the theme, expanding its results. Dealing with the conflict resulting from the violent act will also have restorative repercussions for the entire social network.

Practices that look to future coexistence and invite the victim, the offender, their family members and/or community to voluntarily participate in a cycle of conversations aimed at: (i) giving a voice to the victim in order to make the offender to know the extent of the repercussions of his violent act and on whom; (ii) enable the offender to acknowledge her mistake; (iii) compromising victim and offender with the purpose of non-violence as a resource in coexistence; (iv) include the family and the community as support for the victim and the offender to achieve the purpose mentioned in the previous item; (v) identify and seek to meet the victim's and offender's needs; (vi) seek the restoration of the social relationship, especially among those who will maintain coexistence.

The expression restoration is very happy, insofar as restorative practices make efforts to try to bring the quality of the social relationship closer to the original moment with the conviction that this original is irretrievable. In restoration, we seek the best possible at a given moment and given circumstance.

Mediation is one of the methods used by restorative practices - those that see violence as an interpersonal social action and hold society accountable as an indispensable intervener in its prevention. These practices are intended to complement the performance of retributive justice – that which identifies the criminal content of violent actions and imposes the punishment provided for by law.

Conflicting coexistence has judicialized and criminalized day-to-day attitudes. The Special Criminal Courts receive, daily, questions between family members who used violent attitudes to solve them and are an extremely fertile scenario for restorative practices. In this scenario, Mediation is highlighted as an intervention and as a possibility to change the course of the history of its actors, including, especially, the emotional recognition of values ​​[9] and needs of the other – victim, offender and community/family – and not just the social and legal recognition of wrongdoing.

Mediation and Family Businesses

Theorists who are dedicated to the theme of family businesses claim that, worldwide, they numerically predominate, with prominence, over other companies. In them, the work relationship overlaps the kinship relationship, making coexistence complex, as well as everyday negotiations.

The company's themes enter the domestic and family life and the domestic and family themes enter the work environment. A dialogue on topics displaced from their original site helps to amplify the natural noises that make up these conversations.

How these individuals accumulate identities – they are children and managers; parents and managers; uncles and department heads; cousins ​​and administrative coordinators, the dialogues do not always involve, exclusively, the relatives, at a certain moment, or the co-workers, at another certain moment, but they intersect these identities, their needs and values, as well as their themes.

In this universe where family members, managers and shareholders, as well as their hybrids co-evolve – there are those who participate in all three instances, those who participate only in two of them or in a single one – dialogue brings together people with diverse and sometimes divergent interests, without let them realize.

Successions, corporate dissolutions or day-to-day administrative issues are the subject of disagreements and possible misunderstandings. Antonio Carlos Vidigal [10] , a consultant dedicated to the topic, in a research on Brazilian family businesses that have been in existence for over XNUMX years, found that the biggest motivator of bankruptcy in our family businesses is fights over personal issues and not administrative disagreements.

With conviction and some experience in this area, I believe that the intervention of a mediator in the critical moments mentioned above can not only safeguard the productive continuity of these companies, but especially the friendly coexistence of these families.

Regardless of the moments of crisis, but also due to the previously described characteristics of this universe, someone who helps its members to discriminate their different interests and to discriminate their different identities, at a given moment, can be of decisive value for the continuity of companies and of relationships.

Final Words

Convinced that the ideas are children of their time and with it they keep coherence, either in relation to the current paradigms, or in relation to the new needs to be met due to the changes in course, I consider the Conflict Mediation an institute tailored for the contemporaneity. and their needs related to coexistence.

The world gathers around the dialogue to identify its energy, environmental, food, social and commercial sustainability. In peace or in war, man finds that the solutions that guarantee peaceful social coexistence are those reached by dialogue aiming at solutions of mutual benefit.

It is, then, popular wisdom, by consensus, that dialogue is the instrument that makes it possible to preserve pacified social relations and, at the same time, find solutions that serve everyone.

The closest instrument to direct dialogue that we know so far is Conflict Mediation. Not only families, but also community, environmental, political-social, business and labor issues, whether national or international, can be adequately handled by Mediation when direct dialogue is not effective for any reason. Mediation is recognized as the institute of excellence for relationships that will continue over time.

With regard to family issues, Mediation is particularly in tune. It takes care of self-composition and the social relationship between the participants with simultaneity and a prospective look. With them, a new stage of life is inaugurated, based on collaboration, dialogue and meeting the interests of everyone, at every moment. It discourages looking to the past and includes caring for third parties indirectly involved in the chosen solutions. It provides the experience of the effects of a productive dialogue and encourages its use as a resource for possible future disagreements, acting with prevention.

Complementing the existing conflict resolution system, Mediation maintains coherence with its purposes – self-composition, mutual benefit and restoration of the social relationship – and comes to collaborate with the current conflict resolution methods. All of its procedures and techniques are guided by its objectives and are extremely in tune with them.

By participating in Mediation, people learn and apprehend another way of negotiating differences, thus expanding their negotiation resources for future disagreements. This contributes not only to the improvement of communication between them and their surroundings, but also to the reduction of the opening of new disagreements and the recurrence to the Judiciary.

With a curative or preventive, self-compositional or restorative character, its practice extends to the five continents and invites the world to add a new paradigmatic guide to coexistence - collaboration based on interdependence and mutual satisfaction, preserving differences and privileging each other. the authorship.

(II) The Institute of Family Mediation as an Instrument for Implementing Shared Guarding

                                                 Samantha Pelajo

mediator. Collaborative Lawyer. Master in Mediation and Negotiation by IUKB. Master's student in Sociology and Law at UFF. Counselor, President of the OABRJ Mediation Committee and Chamber. Professor and Coordinator of the Interdisciplinary Mediation Group at PUC-Rio. Certified by the ICFML. Senior Mediator of the TJRJ.

Initial considerations

The Constitution of the Republic, promulgated almost 30 years ago, brought a significant paradigm shift for Family Law, as it began to focus on the protection of human dignity. According to article 226, § 8o, of the Magna Carta, constitutional protection turns to individual family members [11] .    

From this new constitutional perspective, one could even think about a social function of the family [12] . The family, the basis of society, starts to deserve state protection insofar as it guarantees its members an environment conducive to the development of their personalities and potential. In the words of Professor Guilherme Calmon [13]:

“(…) the family, nowadays, can no longer be seen as an end in itself; being, on the contrary, an instrument, a privileged locus for the full development of the personality of its members. (…) thus, a new legal treatment of the family is currently required, a treatment that meets the constitutional aspirations of the family community, which must be protected to the extent that it meets its social function, that is, to the extent that in which it is able to provide a privileged place for the good experience and dignification of its members (…).”

Since the enactment of the 1988 Constitution, the concept of family has come to include marriage, stable union, single-parent family and, also, family configurations not expressly provided for, but certainly implicitly protected by the Magna Carta [14]. By way of illustration, same-sex unions are part of this list of recognized family entities based on a systematic interpretation of the Constitution.

Whenever values ​​such as care, affection, respect, consideration, solidarity, mutual protection are present [15] and the purpose of constituting a family, one is facing a family entity, giving rise to the corresponding state protection. For Professor Paulo Lôbo [16]:

“The protection of the family is mediated, that is, in the interest of people's existential and affective fulfillment. It is not the family per se that is constitutionally protected, but the indispensable locus of human fulfillment and development. From the point of view of the best interest of the person, some family entities cannot be protected and others unprotected, as exclusion would reflect on the people who integrate them by choice or by circumstances of life, compromising the realization of the principle of human dignity. ”

In this social context, how can one not think about the sharing of responsibilities and rights and duties inherent to family power, even after the dissolution of life in common between the marital or convivial couple? 

Shared Guard in Consensus Cases

The original wording of the Civil Code of 2002 did not expressly mention the institute of shared custody. Nevertheless, Doctrine and Jurisprudence had been admitting its incidence in cases in which “total and harmonious consensus” was evident [17] between parents and also “interest (of both) in its implementation [18]”.

To Lei no 11.698, enacted on June 13, 2008, gave new wording to articles 1.583 and 1.584 of the Civil Code, incorporating joint custody into the country's legal system. A few years later, Law no.o 13.058/14 added new and important provisions to the Civil Code.

Pursuant to the provisions of article 1.583, §1o, of the Civil Code, shared custody consists, by legal definition, of “joint responsibility” and the “exercise of rights and duties of the father and mother who do not live under the same roof, concerning the family power of common children”. 

In this type of custody, father and mother share responsibility for deliberations, decisions and daily attributions concerning their children's lives and have the opportunity to follow their development and achievements, even if the times of coexistence are not identical and that the child or the adolescent has as a reference point of residence the house of one of his parents.

To the children, as people in a special condition of development, shared custody allows father and mother to act in a collaborative and complementary way in the day-to-day care and in the transmission of values, principles and experiences that will guide the formation of their personalities.

In the words of Professor Ana Carolina Akel [19]:

“The most important lesson is to demonstrate to the offspring that, despite their parents not living together, they remain united in their interests and well-being, that they remain sensitive to their needs and will not fail to provide them with stability.”

The Civil Code provided, in the original wording of article 1.583, that, in the event of a consensus, the father and mother could define the way in which the custody and responsibility of the children would be exercised. Pursuant to the new wording of article 1.584, item I, of the Civil Code, in the event of consonance of wills, the jurisdictional parties may opt for unilateral or shared custody.  

Certainly, the express incorporation of shared custody into the legal text has a relevant symbolic value, as it legitimizes the institute and contributes to the promotion of a culture of joint exercise of parental responsibility. 

It can be seen, however, that the forecast remains very similar for cases of consensus, that is, the Law maintained the possibility of joint deliberation and decision by the parental pair, having only expressly added the possible models for exercising the custody of minor children. . 

The shared guard in cases of dissent

Brazilian society had been welcoming shared custody as a concrete possibility, whenever there was a convergence of wills and a friendly rapport between the parents. 

If the new legal diploma of 2008 had been restricted to instituting shared custody for cases of consensus, the inclusion of the institute in the legislation would have represented little for Brazilian society. At the most, a recurring informal practice would be made official.

However, Law no.o 11.698/08 amended the wording of articles 1.583 and 1.584, providing that, in cases of dissent, the judge must decide on shared custody. 

Pursuant to article 1.584, §1o, it is up to the Magistrate to make the jurisdictions aware of “the meaning of shared custody, its importance, the similarity of duties and rights attributed to parents and the sanctions for non-compliance with its clauses” and, also, encourage them to reach a composition that includes father and mother as fundamental references in coexistence and daily care for their children.

This new tone finds resonance in the constitutional principles of human dignity, full family coexistence, responsible parenting, the best interests of children and adolescents and equality between spouses or partners, among many others that could be listed, and still , in the paradigm of contemporary Family Law that has the dignity of the human person as the focus of constitutional protection. Nevertheless, it demonstrates the importance that the State attaches to the active and collaborative participation of fathers and mothers in the education of their children.

With the institution of shared custody, it is intended to preserve the proximity between father, mother and children. Constant coexistence and a participatory nature tends to avoid the undoing or emptying of bonds [15].

For Professor Ana Carolina Akel [21]:

“The effective exercise of shared custody values ​​both the maternal and the paternal role, considerably minimizing disputes between the parents that often cause damage, physical and mental exhaustion for all family members. Preventing the parent from becoming a mere visitor, the relationship with the offspring is maintained in a more balanced way, enabling the emotional and psychological stability of the minors who, in fact, but no longer under the same roof, live with their parents.”

Although the incorporation of shared custody into the country's legal system has represented an advance, there was still some timidity in its discipline.

This is because article 1.584, §2o, of the Civil Code (wording of Law n.o 11.698/08) provided that, in the absence of an agreement between the mother and father regarding the custody of the child, shared custody would be applied “whenever possible”.

As it is an indeterminate legal concept, the expression ended up allowing plural interpretations and a consequent emptying of the objectives of the Law.

In an exquisite guiding vote, dated August 2011, whose summary is transcribed below, Minister Nancy Andrighi defines the issue [22]:

“CIVIL AND CIVIL PROCEDURE. SPECIAL RESOURCE. CIVIL LAW AND CIVIL PROCEDURE. FAMILY. SHARED GUARD. CONSENSUS. NEED. ALTERNANCE OF RESIDENCE OF THE MINOR. POSSIBILITY. 1. (…) 2. Shared custody seeks to fully protect the best interests of the children, as it reflects, much more accurately, the reality of the current social organization that is moving towards the end of the rigid divisions of social roles defined by the parents' gender . 3. Shared custody is the ideal to be sought in the exercise of Family Power between separated parents, even if they require restructuring, concessions and various adaptations, so that their children can enjoy, during their training, the psychological ideal of double referential. 4. Although separation or divorce usually coincide with the apex of the estrangement of the former couple and with the greatest disclosure of existing differences, the best interest of the minor still dictates the application of shared custody as a rule, even in the event of absence of consensus. 5. The infeasibility of shared custody, due to the absence of consensus, would make the exercise of a non-existent power by one of the parents prevail. And it is said to be non-existent, because it is contrary to the scope of the Family Power that exists for the protection of offspring. 6. The judicial imposition of the attributions of each of the parents, and the period of coexistence of the child under shared custody, when there is no consensus, is an extreme measure, but necessary for the implementation of this new vision, so that the legal text is not made, dead letter. 7. Joint physical custody is the ideal to be sought in the establishment of shared custody, because its implementation breaks single-parenthood in raising children, a commonplace fact in unilateral custody, which is replaced by the implementation of conditions conducive to the continued existence of bifrontal sources of exercising family power. 8. Fixing any period of time, in which physical custody will be with one of the parents, allows the child to experience the same routine in the light of maternal and paternal contact, in addition to enabling the child to have a three-dimensional view of reality , refined from the synthesis of these isolated interactive experiences. 9. The establishment of joint physical custody, however, is subject to the practical possibility of its implementation, and the factual peculiarities involving parents and children must be observed, such as the location of residences, financial capacity of the parties, availability of time and routines of the minor, in addition to other circumstances that must be observed. 10. Shared custody should be taken as a rule, and joint physical custody – whenever possible – as its effective expression. 11. (…)”

A few years later, more precisely on December 22, 2014, Law n.o 13.058, removing the expression “whenever possible” and providing in article 1.584, § 2o, of the Civil Code that:

“When there is no agreement between the mother and father regarding the custody of the child, both parents being able to exercise family power, shared custody will be applied, unless one of the parents declares to the magistrate that he does not want custody of the child. smaller."

With the legislative evolution, shared custody becomes optional for cases of consensus and imperative for cases of dissent. This paradigm shift makes Brazilian society inaugurate a movement of gradual assimilation of new premises.

The provision of shared custody in the legislation granted the institute the state seal, generating greater receptivity in its adoption. It is no longer a reality for a few families to contemplate all those who want, and can, directly exercise the rights and duties inherent to family power.

It is no longer justified that only one of the parents unilaterally exercises custody, that is, that one is fully caregiver and responsible and the other, merely a visitor, provider and supervisor. The concept of an exclusively caring mother and an exclusively providing father has long been outdated.   

Some of the reasons for resistance to the institution of this type of custody as a general rule seem to have been: (i) the fear that sharing parental responsibility would mean an equitable division of the children's time with their parents; (ii) the fear that this model would represent a reduction, or even exoneration, of the alimony payments; (iii) the concern that the other, due to lack of knowledge or inexperience, would not provide the necessary care to the children.

In the first two cases, the clarifications offered by the Magistrate have the power to put an end to the misunderstanding about the nature of the institute. In the third case, the Judge can help the jurisdictions to find solutions that settle possible concerns and enable the effective implementation of shared custody.

However, with the new wording of article 1.583, § 2o, conferred by Lawo 13.058/14, the Civil Code itself clarifies the issue of sharing the time of coexistence:

“In shared custody, the time spent with the children must be shared in a balanced way with the mother and father, always bearing in mind the factual conditions and the interests of the children.”

If it is a fact that the sharing of parental responsibility does not necessarily lead to an equitable division of time, it can also be said that the law invited the search for the greatest possible balance in the distribution of periods of coexistence between children and their parents. The end sought by the Legislator is linked to the idea that the closer the interaction, the stronger the affective bonds, materializing the best interests of the child and adolescent, and the more fluid and qualified the participation of father and mother will be. in the exercise of responsible parenting.

In cases where the dissent is motivated by the firm conviction that custody should be exercised unilaterally, the Public Ministry and the Family Court should make use of a study and/or social and psychological expertise of the case, so that they can appreciate the peculiarities of the factual context and thus decide on which of the two modalities of exercising custody provided for in the Civil Code will meet the interests of minor children.

The Legislator started from the premise that the mere lack of consensus between the parents should not lead to the disregard of the institute of shared custody as a first option, even because the dissent will not necessarily be suppressed from the adoption of unilateral custody, quite the opposite: it tends to to be promoted [23]. 

It therefore instituted unilateral custody as a residual modality of exercising parental responsibility, that is, for cases in which there is a significant imbalance between the parents of possibilities or availabilities to assist minor children in matters concerning affection, health, safety and education. Whenever the technical studies or expertise conclude that both parents present satisfactory conditions for the exercise of parental responsibility for minor children, custody will be shared.

However, the joint exercise of parental responsibility can bring contours that are difficult to handle when the dialogue between the parental pair is dimmed or truncated due to the hurts and resentments inherited from the marital or convivial pair. And, even in cases where custody is attributed to only one of the parents, the fact is that the other will not be completely excluded from the children's lives, being responsible for living with the minors and also supervising their interests, including with legitimacy. "to request information and/or accountability, objective or subjective, in matters or situations that directly or indirectly affect the physical and psychological health and education of their children” – article 1.583, §5o, of the Civil Code.

Thus, considering that: (i) the general rule is that father and mother are able to deliberate and decide together on issues inherent to the training, education, health and safety of their children; (ii) even when custody is not shared, there is always potential oversight by the non-guardian in matters related to minor children; (iii) the Civil Code provides, in its article 1.584, item II, §3o, the intervention of an interdisciplinary team aiming at a balanced division of the time children or adolescents spend with their father and mother; (iv) the Civil Procedure Code of 2015, in its article 3o, §3o, established as a fundamental norm of civil procedure the directive that judges, prosecutors, public defenders and lawyers should encourage the use of consensual means of conflict resolution by the jurisdictions; and (v) the new procedural legislation provides in article 165, §3o that Conflict Mediation is the most appropriate consensual means for ongoing relationships over time; The special relevance of this method is evident in family contexts in which the dissolution of the conjugal or convivial society is sought with the preservation of the parental partnership. 

Whenever jurisdictional parties opt for Family Mediation as an instrument for dialogue and assisted negotiation of their interests, the decision as to the custody model to be adopted and the way in which it is exercised will be up to the mediates themselves. 

The Conflict Mediation Institute and Constitutional Principles

The Constitution provides, in its preamble, for the peaceful settlement of disputes as a commitment of Brazilian society. The Conflict Mediation Institute implements this guideline, as it aims to facilitate communication between mediates, so that they can reach mutually beneficial solutions.

Although it is understood that the preamble of the Constitution does not have normative force [24], it is certain that it reflects “the ideological position of the constituent” [25] and has an interpretive nature [26]. Nevertheless, the Civil Procedure Code of 2015 provided, in its article 3o, §2o, as a fundamental rule, that the “State will promote, whenever possible, the consensual solution of conflicts.”.

Mediation enhances access to Justice in its contemporary conception of a fair legal order [27], because the deconstruction of the conflict is proper: more appropriate and fair solution in the perception of the intermediaries themselves; timely: it happens at the pace of the mediated, that is, it only takes the time necessary for communication to be re-established and negotiation to be substantiated; effective: as the intermediaries are the authors of the final composition, the commitment to complying with the agreement is greatly increased. 

The principle of freedom will permeate the entire procedure: the choice of the method and the mediator(s), as well as the leading role in participation and co-authorship in the resolution, are exclusively up to the mediators.

Throughout the mediation and in compliance with the principle of equality, similar opportunities for participation will be guaranteed to the mediators, including through the (re)balancing of any imbalances.   

Due to confidentiality, non-judgment or attribution of value judgment, as well as the absence of evidentiary instruction and the adequacy of time to people's rhythm, the strain - emotional, relational, social - experienced by the mediates tends to be less expressive, preserving their psychophysical integrity.

When thinking about inclusive solutions, of mutual benefit, as proposed by Mediation, the principle of solidarity is materialized.

As a congregator of the principles of freedom, equality, psychophysical integrity and solidarity, the principle of human dignity [28] – basis of validity of the Legal Order – is supported by the practice of Mediation, especially in cases where the relationship extends over time.

As father and mother recognize the complementarity of their roles in the lives of their children, they begin to guarantee children and adolescents the daily coexistence with their maternal and paternal families and, consequently, the continued transmission of values ​​and principles through the maternal lines. and paternal, in compliance with the principle of responsible parenting.

As a result of the combination of the principles of full family life and responsible parenting, the principle of the best interests of the child and adolescent is also materialized by the incorporation of the Institute of Mediation into the practices commonly used in marital or coexistence outcomes.

Mediation in Family Actions

As stated earlier, the 2015 CPC brought, among the fundamental rules of civil procedure - Chapter I of Title I, the State's commitment to the search for consensual solutions to conflicts of interest. In Chapter X of Title III, dedicated to Family Actions, this commitment was reinforced by the provision of article 694:

“In family actions, all efforts will be made to reach a consensual solution to the dispute, and the judge must have the help of professionals from other areas of knowledge for mediation and conciliation.”

Evidently, family contexts greatly benefit from the consensus, because, as the basis of society, the family needs to preserve its health. When there are minor children, this need becomes even more evident.

Due to the degree of subjectivity that commonly permeates family conflicts, the Law foresaw interdisciplinarity as a hallmark of family mediation. The complementarity of knowledge and contributions in conducting the assisted dialogue and negotiation process greatly enhances the chances of successful mediation, achieving the objective recommended by the NCPC.

Furthermore, it is worth considering that family dynamics are very unique and demand an approach that respects this characteristic. In a mediation, the premises that will guide the deliberations and decisions are not predefined, as with legal guidelines, but identified from the report of the mediates themselves, in a way that portrays and respects the sense of justice, reasonableness, proportionality, inherent coherence to that family context:

“(…) commonly, material legislation positive norms of conduct that may not coincide with the dynamics of interaction of many family groups. Thus, in our opinion, the solution of conflicts in the family area should first go through the identification of 'internal' parameters of justice and coherence, that is, extracted from each relationship individually considered. Only later, if the 'relational syllogism' (= subsumption of the different perceptions to the dynamics of the relationship) was not enough to reach consensus, then the legal syllogism (= subsumption of facts to the type foreseen by law) would be understood and accepted as necessary, and therefore consistent and fair, by all involved in the dispute. [29]”

One cannot fail to consider that, among the ideal conditions for carrying out a family mediation, is the extrajudicial environment. The Palace of Justice ends up bringing with it a symbolism that refers mediators to the idea of ​​a decision awarded by the State and, consequently, to the adversarial and non-inclusive stance.

If it is possible for family mediation to take place even before a judicial process begins, so much the better. If this is not a possibility, the procedural legislator itself provided, in the sole paragraph of article 694, the suspension of the process so that the mediating parties can resort to extrajudicial incidental mediation:

“At the request of the parties, the judge may order the suspension of the process while the litigants undergo extrajudicial mediation or multidisciplinary assistance.”

Another important legislative novelty is the provision of article 695, in the sense that the deadline for defense only begins to flow if the mediation does not take place by decision of both parties or if it is not possible for the mediating parties to reach a composition that covers all the disputed issues. portrayed in the initial petition. In other words, the defendant is summoned and summoned to participate in the mediation and not to defend himself against the author's claim.

However, the NCPC provided that the writ of summons and subpoena of family actions will no longer be accompanied by counter-faith. The legal provision stamped in article 695, § 1o is worthy of praise, as it mitigates the phenomenon of polarization and tends to soften the adversarial posture, typical of the moments following the fulfillment of the citation diligence.

The NCPC, in its article 696, took care to provide that in incidental family mediations, carried out within the scope of CEJUSC or in the extrajudicial sphere, there may be a plurality of sessions, with the objective that the solution of the dispute happens in time and satisfied.  

Lawyers and public defenders play a key role in the effectiveness and effectiveness of Mediation. Through advising on the legal, doctrinal and jurisprudential frameworks concerning each of the themes taken to the assisted dialogue and negotiation process and on the legal consequences of each of the possibilities of solution proposed by the intermediaries, they provide their clients with information and sufficient reality for the exercise of informed freedom.

By moving away from an exclusively defensive performance and approaching the role of legal advisors in search of contemplation of the interests of their clients in solutions of mutual benefit, lawyers and public defenders guarantee gains and minimize losses - relational, cost and time -; fulfill their genuine mission; comply with the provisions of the Lawyer's Code of Ethics [30] ; and also contribute to achieving customer satisfaction through win-win solutions that are truly sustainable over time.

However, consideration must be given to the analysis of whether this mandatory participation would need to take place in person at all meetings or only at the first one, as article 696, § 4 seems to provide.o:

“At the hearing, the parties must be accompanied by their lawyers or public defenders.”

This is because the mediates and their sponsors may eventually find another form of participation that is more viable and, even so, provides for the observance of the principle of informed decision. In our opinion, the guide must be to respect the decision of the mediators and their legal advisors regarding this issue.

It is also important to assess which family contexts could use mediation. Not infrequently, it is commented that, in situations of interdiction or succession with absent or incapable heirs, mediation would not be viable. On another occasion, we have already had the opportunity to propose a relativization of this assertion:

“(…) in our opinion, mediation is also appropriate in situations in which, in theory, it would not be possible to speak of a transaction due to the unavailability of the right in question. (…) an illustrative situation is the interdiction. Here, mediation would not serve to say whether or not the legal requirements would be present in the factual context experienced, but rather to provide a fruitful environment for the identification, by consensus of the family, of who would be the person indicated to appear in the process as a claimant to exercise. the guardianship of the interdict; what nature of personal care and administrative structure would be brought to the attention of the Judiciary. The succession field cannot be forgotten. In an inventory involving an incapable heir, the transaction would not be appropriate, but it would certainly be possible to identify, in mediation, what the family's position would be about: how the process should be conducted; who would have better conditions for the exercise of inventory; that administrative measures could be requested from the court – always with the prior hearing of the Public Ministry. Even requests for a share (CPC/1973, art. 1.022; CPC/2015, art. 647), to be presented to the judge, can be defined by the capable heirs, within the scope of mediation, offering to the prosecutor and the judge a proposal for the division of assets that sufficiently takes into account the interests and condition of the incapable. [31]”    

Final Words

The negotiation of differences in relation to the conduct of the children's lives is naturally incorporated into the routine of all families. In a moment of separation, however, it is necessary to redefine the way in which such differences will be reconciled.

Professor Leila Maria Torraca de Brito [32] maintains that:

“If during the term of the conjugal union the children represent care and responsibilities that must be shared, after the separation, what is reconfigured is the state referring to conjugality, and not to parenthood. (…) If, throughout the marital union, one of the difficulties is how to reconcile the marital bond respecting individualities, after separation the difficulty becomes that of reconciling the parental bond respecting the individualities of the father and mother.”

While this redefinition may present contours of tension and exhaustion, the efforts made so that issues related to children do not become a reason for dispute greatly contribute to everyone's emotional stability. As Professor Waldyr Grisard Filho adds [33]: 

“(…) by establishing shared custody as a preference, the new law breaks with the adversarial culture for the possession of children, eliminating the possibility of there being 'winners' and 'losers', succeeding in proclaiming only one winner, the son.”

Not infrequently, in situations of disagreement about how to lead their children's lives, they feel uncomfortable and present emotional difficulties because they perceive themselves as a reason for disagreements between their parents.

The proposal of shared custody for situations of dissent puts this issue in focus and Mediation, in these cases, makes it possible to ensure that everyone - parents and children - gain in quality of coexistence and preserve the quality of their daily lives and their emotion of the effects. deleterious discord.

The nature of Mediation and its purposes make it possible for situations of dissent in relationships continued over time to gain a treatment that makes it possible to rescue the quality of social interaction between people and make them available for dialogue based on consensus and focused on the future. Its set of benefits and purposes make Mediation the multidisciplinary instrument of choice for situations of dissent in shared custody.

The provision of shared custody as a general rule for cases of dissent brings in itself an important social achievement, but also a social challenge of the same nature. As the principle of the best interests of the child and adolescent must prevail, it is natural that the children's right to have the references and worldviews of father and mother prevail and not the existence of conflict between adults. However, this dynamic permeated by controversies and wear and tear needs to be conducted in order to highlight the best contributions that each parent can offer to the daily life and education of minors, instead of allowing father and mother to get lost in reciprocal disqualifications and delegitimizations. . Mediation is the most appropriate instrument for this type of management.

In the words of Professor Paulo Lôbo [34]:

“The use of mediation is valuable for the good result of shared custody, as its application in Brazil and abroad has shown. In successful family mediation, the parents, in successive sessions with the mediator, reach a satisfactory degree of consensus about how they will jointly exercise custody. The mediator decides nothing, as it is not up to him to judge or define the rights of each one, which contributes to the solidity of the transaction concluded by the parents, with their contribution.”

In the same sense, the Statement n.o 335 of the IV Civil Law Conference [35]:

“Shared custody should be encouraged, using, whenever possible, mediation and interdisciplinary team guidance.”

The inclusion of the Shared Guard institute in the country's legal system and the provision of Conflict Mediation as an instrument to implement its exercise, even in cases of lack of dialogue between parents, represent a real achievement for Brazilian society. Children and Adolescents, being formed by father and mother in conjunction with efforts and care, will be more structured adults and more aware of their rights and duties.

BIBLIOGRAPHY

AKEL, Ana Carolina Silveira. shared guard – an advance for the family, Editora Atlas, São Paulo, 2007.

ARIES, Philippe. Child and family's social history. Publisher LTC, Rio de Janeiro, 1981.

AUN, Juliana Gontijo; VASCONCELOS, Maria José Esteves; COELHO, Sonia Vieira. Systemic Assistance to Families and Social Networks. Art & Prose Workshop, Belo Horizonte, 2005.

BODIN de MORAES, Maria Celina. The Concept of Human Dignity: Axiological Substrate and Normative Content, in SARLET, Ingo Wolfgang (organizer), Constitution, Fundamental Rights and Private Law, Porto Alegre Editora Livraria do Advogado, 2003.

BRITO, Leila Maria Torraca de. Joint Guard: concepts, prejudices and practice in consensus, in PEREIRA, Rodrigo da Cunha (organizer), Affection, Ethics, Family and the New Brazilian Civil Code, Belo Horizonte, 2004, p. 356 and 361.

CARTER, Betty; Mc GOLDRICK, Monica & col. Changes in the Family Life Cycle. Publisher Artes Médicas, Porto Alegre, 1995.

CESAR-FERREIRA, Verônica A. da Motta. Family, Separation and Mediation – a psycho-legal view. Method Editor, São Paulo, 2007.

GAMA, Guilherme Calmon Nogueira da, and GUERRA, Leandro dos Santos. Family Social Role, in Social Function in Civil Law, Editora Atlas, São Paulo, 2007.

GRISARD FILHO, Waldyr. shared guard: a new model of parental responsibility, Editora Revista dos Tribunais, São Paulo, 2000.

KASLOW, Florence W. & SCHWARTZ, Lita Linzer. The Dynamics of Divorce – a life cycle perspective. Psy Publisher, São Paulo, 1995.

LOBO, Paul.  Civil Law - Families, Editora Saraiva, São Paulo, 2008.

MADALENO, Rolf Hanssen.  The shared guard from the perspective of fundamental rights, in Fundamental Rights of Family Law, organizers WELTER, Belmiro Pedro, and MADALENO, Rolf Hanssen, Editora Livraria do Advogado, Porto Alegre, 2004.

MOTTA, Marie Antoinette Pisano.  Sharing Guard in Consensus and Litigation,in PEREIRA, Rodrigo da Cunha (organizer), Family and Human Dignity, Belo Horizonte, 2006.

SALLES, Karen Ribeiro Pacheco Nioac de.  shared guard, Publisher Lumen Iuris, Rio de Janeiro, 2001.

SICA, Leonardo. Restorative Justice and Criminal Mediation – The new model of criminal justice and crime management. Publisher Lumen Juris, 2007.

SILVA, José Afonso da. Applicability of Constitutional Norms, Malheiros Editores, 3rd. edition, São Paulo, 1998.

SLUZKI, Carlos E. The Social Network in Systemic Practice. Publisher Casa do Psicólogo, São Paulo, 1997.

SUARES, Marines. Mediating in Family Systems. Publisher Paidós, Buenos Aires, 2002.

VANER, Ricardo. Anatomy of an Endless Divorce – Litigation as a form of bond, Editora Casa do Psicólogo, São Paulo, 1999.

VIDIGAL, Antonio Carlos; DBA Long live the Family Business! Publisher Rocco, Rio de Janeiro, 1996.

WATANABE, Kazuo. Access to justice and modern society, in GRINOVER, Ada Pellegrini et. al., Editora Revista dos Tribunais, São Paulo, 1988.

 

References

[1] ARIÈS, Philippe, Social History of Children and Family, Editora LTC, Rio de Janeiro, 1981, p. 225.s

[2] CARTER, Betty; Mc GOLDRICK, Mônica & col., Changes in the Family Life Cycle, Editora Artes Médicas, Porto Alegre, 1995, p. 67.

[3] AUN, Juliana Gontijo; VASCONCELOS, Maria José Esteves; COELHO, Sônia Vieira, Systemic Assistance to Families and Social Networks, Art & Prosa Workshop, Belo Horizonte, 2005, p. 113.

[4] VAINER, Ricardo, Anatomy of an Interminable Divorce – Litigation as a Form of Bonding, Editora Casa do Psicólogo, São Paulo, 1999, p. 17.

[5] SLUZKI, Carlo E., The Social Network in Systemic Practice, Editora Casa do Psicólogo, São Paulo, 1997, p. 41.

[6] CESAR-FERREIRA, Verônica A. da Motta, Family, Separation and Mediation – a psycho-legal view, Editora Method, São Paulo, 2007, p. 232.

[7] SUARES, Marines, Mediando en Sistemas Familiares, Editora Paidós, Buenos Aires, 2002, p. 261.

[8] KASLOW, Florence W. & SCHWARTZ; Lita Linzer, The Divorce Dynamics – a life cycle perspective, Editora Psy, São Paulo, 1995, p. 48.

[9] SICA, Leonardo, Restorative Justice and Criminal Mediation – the new model of criminal justice and crime management, Editora Lúmen Júris, 2007, p. 58.

[10] VIDIGAL, Antonio Carlos, DBA, Long live the Family Business!, Editora Rocco, Rio de Janeiro, 1996, p. 123.

[11] LÔBO, Paulo, Civil Law – Families, Editora Saraiva, São Paulo, 2008, p. 62.

[12] GAMA, Guilherme Calmon Nogueira da, and GUERRA, Leandro dos Santos, Social Function of the Family, in Social Function in Civil Law, Editora Atlas, São Paulo, 2007, p. 116/134.

[13] GAMA, Guilherme Calmon Nogueira da, and GUERRA, Leandro dos Santos, Social Function of the Family, in Social Function in Civil Law, Editora Atlas, São Paulo, 2007, p. 127 and 128.

[14] LÔBO, Paulo, Civil Law – Families, Editora Saraiva, São Paulo, 2008, p. 60/61.

[15] GAMA, Guilherme Calmon Nogueira da, and GUERRA, Leandro dos Santos, Social Function of the Family, in Social Function in Civil Law, Editora Atlas, São Paulo, 2007, p. 133/134.

[16] LÔBO, Paulo, Civil Law – Families, Editora Saraiva, São Paulo, 2008, p. 62.

[17] MADALENO, Rolf Hanssen, The Shared Guard from the Optical of Fundamental Rights, in Fundamental Rights of Family Law, organizers WELTER, Belmiro Pedro, and MADALENO, Rolf Hanssen, Editora Livraria do Advogado, Porto Alegre, 2004, p. 354.

[18] SALLES, Karen Ribeiro Pacheco Nioac de, Guarda Partilhar, Editora Lumen Iuris, Rio de Janeiro, 2001, p. 101.

[19] AKEL, Ana Carolina Silveira, Guarda Compartilhada – an advance for the family, Editora Atlas, São Paulo, 2007, p. 66.

[20] GRISARD FILHO, Waldyr, Guarda Compartilhada: a new model of parental responsibility, Editora Revista dos Tribunais, São Paulo, 2000, p. 106.

[21] AKEL, Ana Carolina Silveira, Guarda Compartilhada – an advance for the family, Editora Atlas, São Paulo, 2007, p. 93 and 94.

[22] Superior Court of Justice, Special Appeal n^o 1.251.000 – MG (2011/0084897-5) – Rapporteur: Minister Nancy Andrighi.

[23] AKEL, Ana Carolina Silveira, Guarda Compartilhada – an advance for the family, Editora Atlas, São Paulo, 2007, p. 129.

[24] News available on the website www.stf.gov.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=59125&caixa Busca=N; accessed on 16.08.2008.

[25] News available on the website www.stf.gov.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=59125&caixa Busca=N; accessed on 16.08.2008.

[26] SILVA, José Afonso da, Applicability of Constitutional Norms, Malheiros Editores, 3rd. edition, São Paulo, 1998, p. 202/204.

[27] WATANABE, Kazuo, Access to Justice and Modern Society, in GRINOVER, Ada Pellegrini et. al., Editora Revista dos Tribunais, São Paulo, 1988, p. 128/135.

[28] BODIN de MORAES, Maria Celina, The Concept of Human Dignity: Axiological Substrate and Normative Content, in SARLET, Ingo Wolfgang (organizer), Constitution, Fundamental Rights and Private Law, Porto Alegre Editora Livraria do Advogado, 2003, p. 105/147.

[29] LIMA, Evandro Souza e; PELAJO, Samantha. Mediation in Family Actions. In ALMEIDA, Diogo Assumpção Rezende de; PANTOJA, Fernanda Medina; PELAJO, Samantha (Coord.). Mediation in the New Code of Civil Procedure. Rio de Janeiro: Editora GEN Forense, 2015, p. 225.

[30] Article 2, sole paragraph, item VI, of the OAB Code of Ethics and Discipline.

[31] LIMA, Evandro Souza e; PELAJO, Samantha. Mediation in Family Actions. In ALMEIDA, Diogo Assumpção Rezende de; PANTOJA, Fernanda Medina; PELAJO, Samantha (Coord.). Mediation in the New Code of Civil Procedure. Rio de Janeiro: Editora GEN Forense, 2015, p. 229-230.

[32] BRITO, Leila Maria Torraca de, Guarda Conjunta: concepts, prejudices and practice in consensus, in PEREIRA, Rodrigo da Cunha (organizer), Affection, Ethics, Family and the New Brazilian Civil Code, Belo Horizonte, 2004, p. 356 and 361.

[33] GRISARD FILHO, Waldyr, article available on the website www.ibdfam.org.br; accessed on 16.08.2008.

[34] LÔBO, Paulo, Civil Law – Families, Editora Saraiva, São Paulo, 2008, p. 177.

[35] Utterances available at www.justicafederal.jus.br/; accessed on 16.08.2008.