12/2/2021
In March 2020, when the pandemic was officially recognized in Brazil, the electronic process was already a reality. At that time, it was already possible, in a good part of the Brazilian justice system, to file petitions remotely, to have decisions and judgments at a distance, all in a virtual environment.
If the social distance imposed by the pandemic was facilitated by this model and tools of the Brazilian electronic process, it is also true that certain procedural acts had to adapt to the new reality. The most important, there is no doubt, is the oral hearing.
In general, there is a mediation hearing and an oral evidence collection hearing (to take the statements of the parties or witnesses). With the pandemic, these two hearings, after a few months of work stoppage at the beginning of the pandemic, began to take place, due to circumstances, remotely.
In the case of mediation hearings, the great challenge was to ensure the confidentiality that presides over these hearings. By legal provision, hearings in which a mediator acts, with the purpose of facilitating communication between the parties and re-establishing the interrupted dialogue, are covered by confidentiality. With this guarantee, the parties are free to openly debate the conflict, which can lead to its amicable solution.
In the case of evidentiary hearings, there are a different issue. Except for the cases of judicial confidentiality, in order to preserve, for example, intimacy, as in family cases, publicity is the rule. The hearings must be public and had to allow access to “any of the people”. As sensitive matter as is the incommunicability of witnesses. According to the law, before being heard, a witness cannot hear the testimony of the other.
The shortening of distances that virtual hearings provide is an undeniable advantage. In this regard, even with the relaxation of social distancing measures, there are those who argue that virtual hearings should continue. Although it is still too early to predict what will prevail, perhaps the solution will move towards hybrid hearings (face-to-face and virtual), combining what existed before and what came into being during the Covid-19 pandemic.
