For a long time, and until very recently, European law remained silent on administrative mediation whereas mediation in other fields -especially family law and consumer law- was largely promoted. Nowadays, mediation in administrative justice is growing in many European countries, making the comparative perspective particularly relevant. This short article focuses on French and Spanish legal orders. Despite a different legal framework, the comparison shows similarities and, finally, invites us to see in mediation, not just an alternative to administrative justice, but rather a justice system on its own.
A Common Conceptual Framework
Through a comparison between French and Spanish legal orders, my latest book suggests a definition of administrative mediation: a ternary process framed by an impartial and neutral third “party” (the mediator) aiming at (re)building a relation with a public administration.
The word “relation” implies that the mediation seeks not only to remedy an expressed dispute with the administration but also to rebuild a link that has been broken between an individual and a public administration, for instance by administrative silence. In administrative law, mediation can consist in merely explaining the reasons for an individual administrative act (“educational” mediation” – in French: médiation pédagogique). Indeed, in this area of law, mediation does not necessarily mean compromises and negotiation.
In addition, administrative mediation may concern citizens or public service users, but also -and this has no equivalence in family law or consumer law- employees of the public administration itself (disputes involving civil servants and public employees).
The key elements of the concept of mediation are also applicable in administrative law: flexible process, the decision’s authority derived from co-creation, customization of the solution, etc. Just like in other areas of law, mediation in administrative law has to be clearly set apart from conciliation. Contrary to a conciliator, a mediator does not suggest a solution to the dispute. The solution has to be found and built exclusively by the parties. Hence, when an Ombudsman defends a citizen/public service user/public employee “against” a public administration, it cannot be seen as a mediator (in other hypotheses, Ombudsmen do function as mediators). Besides, the presence of a public administration does not infringe, in itself, the cardinal principles of liberty and equality of the parties.
Within this common conceptual framework, Spanish and French legal orders implemented mediation in administrative justice in a different way.
A Different Legal Framework: National Statute Law (France) vs. Regional Protocols (Spain)
The French Code of Administrative Justice (thereafter: FCAJ) provides two procedures.[i] Firstly, conventional mediation, which interrupts the time limit for litigation. This type of mediation takes place outside the court, but the parties can seek the help of the President of the Court to set it up. Secondly, and much more frequently, the administrative judge (President of the formation) refers the case for mediation in the course of the proceedings. The judge’s initiative can be either triggered by the parties or de officio, but necessarily with the parties’ consent. These procedures have been introduced in 2016 by statute[ii] and were largely promoted by the Conseil d’Etat -in particular, his former Vice-President Jean-Marc Sauvé- mainly in order to relieve backlog in administrative courts.[iii] In the same spirit, a recent Statute of 22 December 2021 and a Decree of 25 March 2022 implement, after three years of experimentation (1 April 2018 – 31 December 2021), prior mandatory administrative mediation for a limited number of disputes involving social rights and rights of public employees.
Both Statutes (2016 and 2021) apply to all administrative jurisdictions on the French national territory, mainly to administrative Courts of first instance and administrative Courts of Appeal.
By contrast, despite numerous critics,[iv] no Spanish Statute providing mediation in administrative justice (mediación intrajudicial) has been adopted yet. Indeed, the national basic law on mediation of 2012 expressly excludes administrative justice. Nevertheless, the court’s referral for administrative mediation (derivación) is a reality in a growing number of Autonomous Communities, such as The Canaries – Las Palmas de Gran Canaria (the first Spanish Court to refer a case for administrative mediation in 2013), Murcia, Catalonia, Madrid or Valencia. Mediation in administrative justice has been introduced through regional Protocols on the basis of art. 77 of the Spanish Code of Administrative Justice (thereafter: SCAJ). However, this provision does not mention “mediation”, but rather “agreement between the parties” (transaction) reached by the judge through conciliation. This confusing situation also generates inequality between the Spanish regions, which can be seen as contrary to art. 24 of the Spanish Constitution providing a right to effective judicial protection. Hence, reform proposals to unify the system have been made, especially from the Valsaín Foundation, but they are still pending.
French and Spanish laws present other interesting differences, such as the degree of professionalization of the mediators selected by the court (very open conditions in France / stricter requirements in Spain). There are also similarities, such as the complementarity between mediation and the jurisdiction.
Beyond the Idea of “Alternative”: The Complementarity between Mediation and the Jurisdiction
Mediation certainly belongs to the famous category of Alternative Dispute Resolution (ADR). But comparative law invites us to think a bit differently by stressing the complementarity between mediation and administrative justice.
In both France (FCJA, art.L.213-4) and Spain (SCJA, art.77.3), the parties are allowed to ask for a judge’s approval (homologation) to enforce their mediation agreement. Even if it is much more common in Spain than in France, these legal provisions show that mediation should not be reduced to a cheaper and faster way to avoid the courts.
In France, a growing -and still emerging- case law deserves attention. For instance, the administrative Court of Poitiers qualified the mediation agreement as a “fully-fledged administrative contract”.[v] Upheld by the majority of first-instance administrative courts, this decision set up legal conditions for the judge’s approval. Contrary to the approval of transactions, reciprocal compromises between the parties are not necessary for the court’s approval of mediation agreements. In the same vein, the Administrative Court of Appeal of Bordeaux stated that mediation agreements have to be distinguished from transactions unless decided otherwise by the parties. Hence, according to the court, the field of administrative mediation is wider than the one of transaction.[vi]
In other words, the court’s approval seems sometimes to be necessary to enforce the mediation agreement. Reciprocally, and maybe more surprisingly, mediation can be used to enforce a court decision. This is particularly true in Spain, as pointed out by the famous « A Coruña » case (2018). Here, a mediator (formerly President of the Spanish Supreme Court and the Constitutional Court) succeeded in reaching a compromise between the parties to enforce a sentence of the High Court of Justice of Galicia that remained unenforced for 18 years! This agreement has been, at a later stage, approved by the court.[vii]
Administrative mediation: a cheap alternative to avoid administrative justice? I would rather name it a justice system in itself.
Posted by Dr. hab. Rhita Bousta, Associate Professor at Lille University
Note: The Second International Congress for all mediations (Angers, 5-7 October 2022) was an opportunity to study mandatory administrative mediation from a comparative perspective (Roundtable on prior mandatory administrative mediation, 5 October 2022, 5pm).
Suggested citation: R Bousta, “Mediation in administrative justice. A comparison between French and Spanish laws in a nutshell”, REALaw.blog available at https://wp.me/pcQ0x2-uf.
[i] FCAJ, art. L.213-1 et seq.
[ii] Loi de modernisation de la Justice du XXIème Siècle, 18 November 2016.
[iii] CONSEIL D’ÉTAT, Réflexions pour la justice administrative de demain, 2015, p.15 et s.
[iv] See, for instance: Beatriz Belando Garín, ¿Hacia una ley específica en materia de mediación administrativa ?
[v] Tribunal administratif de Poitiers, 12/07/2018, n°1701757C, concl. S. Ellie, J.C.P. A., (2018), p.2254.
[vi] Cour administrative d’appel de Bordeaux, 30/12/2019, « Bordeaux métropole », n°19BX03235, concl. N. NORMAND, « Transaction ou accord, attention au terme choisi », A.J.D.A. (2020) p.632.
[vii] Tribunal supremo de Justicia de Galicia, Sala de lo C.-A., 2ª Sec., 8/02/2019, n°76/2019.
Photo credits: Penabranca
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