‘Administrative mediation’ is the focus of a new guide produced by the Council of Europe to encourage the use and oversight by member states of mediation to resolve disputes raised by private parties against government authorities. In this two-part blog post, the co-authors discuss the new guide and the research on which it is based (in Part 1) and explore the landscape of administrative mediation in one member state, the UK (in Part 2).
Part 1: Exploring the Contextual Factors behind the CEPEJ’s New Guide on Administrative Mediation
Last December, the European Commission for the Efficiency of Justice (CEPEJ) adopted a new tool with the purpose of promoting the use of mediation in administrative matters among Member States of the Council of Europe (CoE). This new tool stands out from other CEPEJ tools promoting alternative dispute resolution (ADR), as it is the first to focus specifically on administrative mediation.
To ensure the production of a comprehensive tool, the CEPEJ experts [1] took a proactive approach to understand the current state of administrative mediation practices. They conducted interviews with national mediation practitioners and distributed comprehensive questionnaires to relevant stakeholders in all member states. The goal was to gather information and fill any gaps in knowledge surrounding administrative mediation.
Diversity of situations across CoE member states
The analysis of responses received, as well as mediation national legal frames and relevant studies revealed intriguing insights. First, there is a noticeable disparity between member states regarding their understanding of the mediation process. This is reflected in the differences in the definitions and terms used to refer to the process. The perception of administrative mediation varies among CoE member states. In Switzerland, it is exclusively viewed as a process executed by an institutional body, whereas in other legal systems it may be performed by professional mediators or judges. The terminology used to describe this process also differs across member states, with terms such as “mediation” in France, “amicable settlement” in Luxembourg, “conclusion of a peace agreement” in Lithuania, “conciliation” in Germany, etc. So, from the very beginning, it was evident that any tool aimed to promote administrative mediation in CoE member States, would need to prioritize providing a comprehensive definition to unify divergent conceptions.
Secondly, the practices of mediation in administrative matters across the member states are very diverse. They can be classified into four groups. The first group, comprising countries such as Andorra, Armenia, the Czech Republic, Northern Macedonia, and the Republic of Cyprus, lacks the existence of administrative mediation. Although some of these member states have provisions for mediation in civil cases, there is no legal framework for administrative mediation.
The second group of member states have a legal framework for administrative mediation; however, it is rarely implemented. This is the case in countries such as Bulgaria, Portugal, Azerbaijan, Croatia, and Ukraine.
The third group is distinctive in that administrative mediation is practiced informally, despite the absence of a legal basis. This is the case with the Administrative Court of Luxembourg, where the court views its role as not only to apply the law but to resolve the dispute, if possible, by mediating between the parties to promote social cohesion. Although there are no official statistics on the number of such mediations, the court stated that before the Covid-19 crisis, the number of amicable settlements was roughly 10% to 15% of all registered cases.
The fourth group embraces member states where mediation in administrative matters is practiced in the light of an explicit legal basis. This group includes France, Germany, Lithuania, Latvia, Monaco, the Netherlands, Spain, Switzerland, and the United Kingdom, among others.
Within this last category, it has been observed that the administrative mediation practices vary greatly from one member state to another. This group can be divided into three sub-groups. First, for some countries, the only available mediation is institutional, such as in Switzerland where each canton has a cantonal ombud known as the Bureau cantonal de médiation administrative (BCMA). Natural or legal persons can seek a resolution to their dispute through amicable means by contacting the cantonal administrative mediator.
In some member states, mediation is primarily practiced in a judicial context. In this second sub-group, the process of mediation is initiated and sometimes led by the judge. This is the case in countries such as Germany, Spain, and Latvia. For example, in Germany, the status of the mediator conducting the mediation is unique, as the role of judge-conciliator is commonly recognized. In Spain, mediation is considered a “jurisdictional” process and is conducted by mediators who are not judges, unlike the situation in Germany.
The third and final sub-group within this category is referred to as a “hybrid system”. In this sub-group, mediations can be conducted by institutional, out-of-court, or court-appointed third parties within the context of a dispute. This diverse range of practices can be seen in countries such as France, Lithuania, and the Netherlands. In France, for instance, administrative disputes can be resolved through different types of mediation, including jurisdictional, out-of-court, and institutional. Institutional mediation may be conducted by various national or territorial mediators, such as the Défenseur des droits, a city mediator such as Médiateur de la ville de Paris, or a sector-specific mediator, such as the Médiateur des entreprises.
Although consent is crucial for all forms of mediation in France, there is also a mandatory prior mediation known as Médiation préalable obligatoire (MPO). This is applicable for resolving certain social disputes, such as unemployment litigation with Pôle emploi, and disputes involving public officials. The mediator in these cases is a government agent and the process is free of charge.
Barriers impeding the progress of administrative mediation in CoE member states
In continuation of the previous observations, here is another significant insight. Despite a general agreement among national stakeholders on the advantages of administrative mediation, including improved citizen-administration relations, reduced court appeals, more efficient and cost-effective dispute resolution, and a confidential approach to resolving conflicts, the actual use of mediation in administrative matters remains low, as reflected by limited statistics.
The analysis of various situations in member states revealed several obstacles hindering the expansion of administrative mediation, including legal, financial, structural, and cultural barriers. In some CoE member states, the legal framework for administrative mediation is too broad and lacks specificity due to the unique nature of administrative disputes. Additionally, the absence of a clear connection between the mediation process and court trials also hinders the use of administrative mediation. This is the case in countries such as Bulgaria, Croatia, and Switzerland.
Financial and structural obstacles are impeding the expansion of mediation in administrative matters. While mediation is often promoted as a cost-effective alternative to a trial, this may not always be the case, particularly when engaging a professional mediator. In this latter case, in most countries, there is no access to legal aid for mediation procedures, and the cost of hiring a professional mediator must be borne by the parties. Additionally, the lack of specific rules and procedures for mediation within administrative bodies and the absence of authorized mediator lists in several states pose significant structural challenges.
The final obstacle to the development of administrative mediation, as identified by national stakeholders, is the lack of a “mediation culture” among the relevant actors: administrations, lawyers, and court personnel. This can be attributed to a lack of understanding of the process, inadequate information about available procedures, and a general mistrust of mediation. Some citizens believe that the resolution of an administrative dispute can only be achieved through the judicial system, while a portion of lawyers (untrained in mediation) may resist or discourage the use of mediation. All these factors contribute to the lack of a mediation culture in administrative matters.
Recognizing the varied circumstances across member states and the barriers to the advancement of administrative mediation, the CEPEJ has developed a comprehensive guide that unifies the understanding of the concept of administrative mediation through precise definitions. This guide also presents decision-makers with thirteen measures, which can be selectively or fully implemented depending on the specific needs of each member state, to promote the development of administrative mediation within their legal systems. Additionally, the guide’s annex highlights best practices from leading member states, serving as a source of inspiration for others to follow in implementing the recommended measures.
[1] The work resulting in this document was carried out by two scientific experts designated by CEPEJ-GT-QUAL, Ms Sabine Boussard and Mr Karim Salem with the support of Ms Maria Da Conceiçao Oliveira, scientific expert of CEPEJ-GT-QUAL in mediation.
Posted by Karim Salem, PhD Candidate at the University of Strasbourg, and Margaret Doyle, Visiting Research Fellow at the University of Essex School of Law.
Suggested citation: K. Salem and M. Doyle, “Promoting mediation to resolve administrative disputes in Council of Europe member states: Exploring the Contextual Factors behind the CEPEJ’s New Guide on Administrative Mediation”, REALaw.blog available at https://realaw.blog/?p=2374
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