For those of us interested in investigating alternative ways of delivering administrative justice, ‘administrative mediation’ is a fascinating field of research with a lot of potential. As Rhita Bousta highlighted in her recent piece published on this blog, for a few years France has been developing the use of mediation to resolve administrative law disputes. A close study of this phenomenon will certainly provide us with insights and a better understanding of administrative justice.
For instance, Rhita’s claim that mediation is a justice system in and of itself is an important insight that deserves a better analysis. Thus, research into the early days of the 2016 French reform led me to postulate that the introduction of administrative mediation triggered the rise of a separate system of administrative justice (with separate personnel, culture, ideology, pathways in and out of court, dispute practices and outcomes etc). However, such a finding has serious implications. It may explain for instance, why the practice of administrative mediation is slow to arise: it requires a complex set-up to thrive (such as the training of competent mediators, the negotiation of agreements between courts, mediation providers and public bodies, the acculturation of the public, court personnel and public employees etc) Also, one may wonder about the merits of supporting a plurality of administrative justice systems: despite their apparent complementarity, there might be conceptual and practical tensions between different models of administrative justice that will not always be resolved easily.
Similarly, the analysis of the newly identified ‘educational mediation’ (a mediation that ‘consists in merely explaining the reasons for an individual administrative act’) could be tied to foundational debates. We are told that citizens leave an educational mediation without the benefit of any tangible outcomes, but with a better understanding (and acceptance) of the reasons underpinning the decision they initially challenged. While the identification of this new category of mediation is important, it does link with some key issues of modern administrative justice. While educational mediation will likely help these disputants re-connect with public administrations or public bodies and the State more widely, one may question the depth and the ambit of this. Mediation seems a rather limited cure for a much wider problem; indeed, we are told that the public at large feel deeply the loss of direct and personal contact when engaging with public bodies and their agents. Consequently, the notable disappearance of face-to-face contacts where citizens could approach public employees responsible for individual decisions has resulted in a rift between citizens and public authorities and engendered deep mistrust. This in turn has undermined the State’s legitimacy. While educational mediation certainly works towards repairing the relationships of the disputants and rebuilding trust, the mediation figures are too anecdotal to have a real impact at the State level. In and of itself, mediation cannot be a remedy for this mistrust and loss of the State’s legitimacy. Even were administrative mediation extremely successful, it would barely dent this lack of trust. Educational mediation cannot be the only remedy, but it could participate in a wider campaign to regain the trust of alienated citizens. For instance, educational mediations could be used to identify communication gaps and serve to address them.
(Educational) mediation could also help pinpoint where repeated errors are located and where better information, resources or re-design are required to eliminate them. In turn, this could help draft better and clearer administrative forms and shape public bodies’ communication strategies. In a nutshell, educational mediation should be harnessed to educate all disputants including public bodies. As it stands, administrative mediation is a rather expensive and limited process for addressing the disadvantages of an increasingly remote and virtual administration. Furthermore, it is doomed to fail in this aim at least: the number of mediations to make this change a reality would need to be astronomical, leading mediation to be both uneconomical and impracticable. To work, educational mediation would need to be part of a wider package of measures to re-acquaint and reconnect the public with public administration and its public employees.
These two aspects of administrative mediation analysed by Rhita Bousta would benefit from further research on the ground and from a comparative perspective.
Posted by Sophie Boyron (Senior Lecturer, University of Birmingham).
Suggested citation: S Boyron, “A welcome spotlight on administrative mediation”, REALaw.blog available at https://wp.me/pcQ0x2-wt.