Experimenting with compulsory mediation: assessment and continuation, by Sophie Boyron

In administrative law, mediation remains unusual, and compulsory mediation even more so. This is particularly true regarding administrative mediation in France. Despite being introduced in administrative law years back, it has taken several decades to see this method of dispute resolution take root. For this reason, a French experiment in compulsory mediation deserves attention. In 2016, the French Parliament adopted striking reforms in the field of administrative law.[1] It put administrative mediation (both optional[2] and compulsory) on a clear legislative footing and set up an experiment in the field of compulsory mediation. Consequently, administrative courts (particularly at first instance) started to recommend mediation to claimants. In several areas of administrative decision-making – namely welfare, education, and employment – citizens were required to try and resolve their disputes through compulsory mediation.

According to the French constitution, Parliament can set up an experiment to assess the suitability of a reform.[3] In this case, administrative compulsory mediation may have felt untried to justify such a step. Consequently, the experiment was to run for three years, and the participation of public authorities would be voluntary (i.e., all participant government departments, local authorities and public administrations agreed to join the experiment first).

Despite the pandemic, the experiment was undertaken over the planned period and in Autumn 2021 the assessment report was published. From the outset, the overall appraisal was sufficiently positive for compulsory mediation to continue and to be deployed nationally (though the assessment report contains several recommendations for improvement). After a short presentation of the experiment’s organisation, I will present its quantitative and qualitative assessment and review several key findings highlighted in the report.

Involvement of public sector mediators

A decision was made early on to rely largely on established public sector mediators/ombudsmen to fulfil the new mission of compulsory mediation. This choice was crucial and strategic. It would have been impractical to rely on mediators from the private sector (both in terms of organisation and costs – compulsory mediation is free for citizens). The reliance upon existing public sector mediators/Ombudsmen meant that the experiment could start quickly (and with costs met at present by the participating public authorities). Furthermore, these were either dedicated public services mediators/ombudsmen (with all necessary guarantees of institutional independence), delegates of the Défenseur des droits (the national Ombudsman) or mediators of the management centre of the local civil service or finally the Employment Service. On deploying compulsory mediation nationally, the report questions whether this systematic and continued reliance on public sector mediators is realistic; for some, the caseload growth may endanger their functioning and/or deeply transform them.

Quantitative appraisal

Over the three years of the experiment, the report states that 5,516 compulsory mediations had been triggered, 4,810 were actually undertaken with 706 found inadmissible (the report notes that 13% is a high figure for inadmissibility). 4,522 of these (i.e., 82%) concerned social disputes (employment or welfare). 3,316 mediations or 76% were concluded by an agreement between the disputants, a high success rate even for mediation (with 976 mediations failing to find an agreement, i.e., 26%). However, behind these figures, the report highlights that there are important disparities between the various public sector mediators: mediations undertaken by the Défenseur des droits (successor to the Ombudsman) only had a 37% success rate while the médiateurs of Pole Emploi (Employment Service) reached 98%. Similarly, there were important variations between regions and localities that could be explained by local and organizational specificities (but would require further study). While the authors of the report took care not to overstate claims, all stakeholders and participants thought the experiment a success and well worth deploying nationally.

Qualitative assessment

Beyond the purely quantitative assessment, stakeholders and participants noted that the experiment of compulsory mediation has several key advantages. First, it would seem compulsory mediation has given access to justice to citizens (often from vulnerable groups) that would never have contested an administrative decision before a judge.

Second, while noting the difficulty of such assessment, the report highlights that in regions where the experiment was undertaken, the caseload of the relevant administrative court fell or plateaued in the specific subject matters covered by the experiment. While the report is tentative regarding these findings, it thought compulsory mediation cut the number of cases introduced in court, while at the same time giving access to (administrative) justice to groups that would have had little redress otherwise.

Beyond the known advantages of mediation: pacifying, social, innovating, and pedagogical functions, compulsory mediation helps administrative mediation, in general, find a place and recognition in the French administrative landscape. Furthermore, this experiment increased the profile and legitimacy of the public sector mediators involved.

Educational mediation

Beyond the assessment adumbrated above, the report reflects upon several findings. The identification of the category of ‘educational mediation’ is one such finding. According to the report, a large number of mediations should be labelled ‘educational mediations’ (For some public sector mediators,  the number of such mediations was high indeed).[4] Despite the public authority not amending its decision or conceding anything to the citizen(s), the mediation led to an agreement. In many instances, citizens understood better the rationale for the original decision and acceptance increased due to this dialogue. Trying to analyse this phenomenon, the report saw an advantage in these types of mediation: with a large number of decisions having moved online, often citizens do not have any contact with decision-makers regarding the disputed decision. Mediation (whether educational or otherwise) reconnects public bodies with citizens and plays a part in rebuilding citizens’ confidence and strengthening public administration’s legitimacy.

Still, the report warns that ‘educational mediation’ should not be used to disguise the fact that these mediations were concluded without the individual litigant obtaining anything. They may have been convinced of the merit of the decision they previously contested, but the report worries that it could also be the result of resignation or dispute fatigue. Consequently, the report concludes that while educational mediation played a significant role in the experiment, it should not become the core part of compulsory mediation once deployed nationally. This is certainly a key consideration when looking to the future of administrative mediation.

The institutional environment

Another important discussion concerns mediation’s place in the public administration landscape. The report highlights that optional mediation is struggling to be embedded in administrative practices despite the support of the administrative courts. By contrast, compulsory mediation anchors the practice of mediation in several key public services. Consequently, the process of acculturation triggered by compulsory mediation will likely contribute greatly to the acceptance of administrative mediation more widely.

The report notes also that the introduction of compulsory mediation has led to new working relationships between several public services, the administrative courts, and institutional mediators. This is not surprising; in an early study of the introduction of optional mediation, I had identified the role played by new networks of stakeholders in this acclimatization.[5] By using public sector mediators, compulsory mediation has ‘piggy-backed’ on established working relationships and networks between the mediator and relevant public bodies. In all likelihood, this has allowed institutional mediators to begin their work quickly and without lengthy transitory preparation. They are largely responsible for the degree of success encountered with this experiment.

Recommendations for improvement

As stated above, compulsory mediation is here to stay but the authors of the report made some suggestions to be implemented before a national deployment. For instance, every field where compulsory mediation applies has been carefully investigated and modifications have been suggested (some aim to restrict the field of compulsory mediation). Also, the report recommends that the national deployment be done in careful and planned stages to  allow for the institutional specificities of different localities and regions.

Finally, the report gives a final and key recommendation; it points out that both experiment and appraisal were driven by the Conseil d’Etat. However, as the latter does not have the capacity  to oversee the national deployment of compulsory mediation, the report recommends that the Défenseur des Droits be given this new mission.

Transformation of administrative justice in France?

While the report is important for its (positive) assessment of compulsory mediation, the final recommendation has the potential to transform French administrative justice. Not only is the commitment to administrative mediation in general and to compulsory mediation in particular made clear, but with compulsory mediation creating in its wave a degree of acculturation in public administration, the future of administrative mediation seems assured.

A new mission of overseeing compulsory mediation and the various public sector mediators that participate in it will place the Défenseur des droits in charge of this complex system of alternative administrative justice. Thus, the Défenseur des droits will be able to guarantee (and even strengthen) the public sector mediators that participate in this process. On reflection, this proposal has the potential for transforming French administrative justice. Soon, the Défenseur des droits could be heading a separate and informal system of administrative justice – where disputes are mediated instead of litigated. Again, when analysing the early introduction of administrative mediation, I argued that a separate and alternative system of informal administrative justice was being created and that this may transform French administrative justice into a plural administrative justice system.[6] If this proposal became reality, administrative justice in France could be redesigned entirely. It would be interesting to see whether other jurisdictions making a similar move have encountered a similar effect/trend.

Posted by Sophie Boyron (University of Birmingham)

Sophie Boyron is researching administrative law from a comparative standpoint. Over the last fifteen years, she has had a particular interest in the rise of administrative mediation in several European jurisdictions.

Suggested citation: S Boyron, “Experimenting with compulsory mediation: assessment and continuation”, REALaw.blog available at https://realaw.blog/?p=1225

[1] Law n. 1547 of 18 November 2016 for the modernisation of justice in the 21st century.

[2] Administrative judges can recommend to parties that they tried mediation to solve their dispute.

[3] Art. 37-1 of the French constitution: ‘Statutes and regulations may contain provisions enacted on an experimental basis for limited purposes and duration.’

[4] While the Défenseur des droits only labeled as educational 6% of its compulsory mediations between March 2020 and April 2021, the Employment Service did so in 69% over the same period.

[5] See Sophie Boyron ‘Mediation in French administrative courts: what lessons for administrative justice? ‘(2020) 71(3) The Northern Ireland Legal Quarterly  457.

[6] ibid.