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).
In Part 1 of this two-part blog post, we discussed the CEPEJ guide to administrative mediation and the research on which the guide is based. In this second part, we discussed the opportunity that publication of the guide provides to explore what role mediation has in disputes involving public authorities in the UK. It’s not straightforward – for one thing, devolution makes it impossible to discuss what happens across the UK, as there are many aspects of public administration, such as education and social security, that are not overseen by the UK government but by the devolved administrations. Some areas, such as immigration and foreign affairs, are reserved and remain the responsibility of the UK government. Justice as a policy area is devolved in Scotland and Northern Ireland, but reserved in Wales, so policy set by the Ministry of Justice in Westminster covers England and Wales.
In addition, the term ‘administrative mediation’ is not widely used in the UK. The CoE description is ‘alternatives to litigation between administrative authorities and private parties’. It comes within the ambit of what are known in the UK as ‘public law’, ‘judicial review’ and ‘administrative justice’. In this context, we are referring to mediation for disputes between an individual or business and a public authority or government body, usually about a decision made by the government body that is subject to challenge or appeal.[1] In the UK, unlike in other CoE member states, such as France and Spain, disputes involving public employees and their public employers are generally not included in this context.
Among the mechanisms used in the UK for challenging actions, omissions and decisions by public bodies are:
- internal administrative review, carried out by the public body itself;
- the courts, especially through judicial review;
- tribunals, often made up of judicial and lay members;
- public-sector ombuds, primarily for complaints about maladministration;
- mediation in some specific areas.
Unlike in other CoE member states, such as France, the development of administrative mediation in the UK has been, for the most part, dispersed and ad hoc rather than organised centrally. Administrative mediation practice across the UK (UK-wide as well as in each of its nations) is patchy and piecemeal, and little attention has been paid to viewing it as distinct from civil mediation more generally. Among the features that distinguish it from civil mediation are that the disputes are often not about money, or not primarily so; they often involve fundamental rights, including human rights; they often involve ongoing relationships and issues of trust; and there can be multiple parties and/or wider public interest at stake. Mediation practice often differs as well from that commonly used in civil mediation. Mediators often are required to take account of parties’ legal rights and obligations while remaining impartial, and parties are not necessarily free to agree to any settlement they choose to. Mediation might not be a one-off event but a process that takes place over a period of time, allowing for reflection. Confidentiality might be treated differently, so that parties are encouraged to agree a public statement on the outcome. In these ways, administrative mediation inhabits a liminal space that is not solely private and individual nor wholly public.
Ambivalence
The UK Government has had an ambivalent relationship with mediation in public law, although the trajectory since the mid-1990s has generally been towards promoting the use of mediation and other ‘alternative’ forms of dispute resolution. More than two decades ago, the UK Government made a pledge that mediation would be considered in all contractual disputes involving a government body. That 2001 ADR Pledge excluded public law and human rights disputes,[2] reflecting concerns about the establishment of legal precedent and about mediation’s use in cases setting the rights of the individual against those of the state.[3] In the same year that the Government published its ADR Pledge excluding public law disputes from a commitment to use mediation, a key Court of Appeal decision suggested that public law disputes are particularly amenable to mediation.
The ADR Pledge was replaced in 2011 by a Dispute Resolution Commitment, a document that has now been archived and not replaced. In 2022, indicating a shift away from these earlier pledges, the Ministry of Justice published a consultation paper on making mediation mandatory for all civil claims; that consultation paper explicitly excludes any disputes in which one party is the government.[4]
The ambivalence reflected in changing government policy on mediation in administrative disputes is, in the case of many public law academics and lawyers, heightened to the point of deep scepticism. Concerns about mediation in public law, and particularly in disputes involving individuals against the state administration, are manifold and include concerns about, among other issues, the confidentiality of mediation conflicting with the supervisory role of the courts in judicial review.[5]
Practices in the UK
The UK sits awkwardly in both the third and the fourth groups of CoE member states identified from the analysis of responses to the CEPEJ survey (see blog piece here). Administrative mediation is practised informally, without a legal or statutory basis (as in Group 3), but there is also at least one sector in which administrative mediation is practised in light of an explicit legal basis (as in Group 4). The UK is in the ’hybrid’ subgroup of this fourth group, reflecting a wide range of mediation models, practices, and mediator professional identity. (The UK could also be considered to be part of the second subgroup of Group 4 – those member states in which administrative mediation is conducted by the judiciary. It might be useful to consider that a mediation-like model of judge-led dispute resolution – although not referred to as ‘mediation’, and noting the variations in definitions of ‘mediation’ identified in the CEPEJ research) – exists within the SEND and Court of Protection areas. In the Court of Protection, this is a ‘Dispute Resolution Hearing’[6] for a judge to determine if litigation can be avoided.[7] Similarly, in the SEND Tribunal there is ‘Judicial ADR’ for considering appeals at an early stage.[8]
We do not have a comprehensive list of administrative mediation schemes in the UK[9]; however, below are some examples to illustrate practices that fall into the third and fourth groups of the CEPEJ analysis.
Unlike in civil justice, in which there are court-administered schemes for mediation, none of the schemes for administrative mediation we have identified in the UK is linked directly with the courts, although when disputes are mediated after court proceedings have been issued, the court may have a role in approving or noting any mediated settlement. In addition, the Pre-Action Protocol for Judicial Review, which sets out the requirements for parties before issuing proceedings in England and Wales, specifically requires parties to consider ADR, including but not exclusive to mediation, and states that parties ‘may be required by the court to provide evidence that alternative means of resolving their dispute were considered’ (sections 9-12).
- Informal, non-statutory (Group 3 of the CEPEJ survey)
Disputes over tax matters – His Majesty’s Revenue and Customs (HMRC) runs a mediation scheme for individuals and businesses in dispute over tax issues. Only disputes involving compliance checks are eligible for mediation, and the process can be used during a compliance check or after HMRC has issued a decision that can be appealed against. The mediators are ‘institutional’ mediators, in the CEPEJ terminology – they are HMRC officers trained in mediation.
Disputes over health matters – Two mediation schemes are worth highlighting here, and although both relate to the National Health Service (NHS), a public body, they are distinctly different. Clinical negligence claims can be mediated under the NHS Resolution scheme, which uses private independent mediators (‘Out of court’ in the terminology of the CEPEJ guidance). Currently four independent providers are contracted by NHS Resolution to provide mediation services. These disputes tend to be money claims for damages.[10] The other scheme is an institutional one run by the Parliamentary and Health Service Ombudsman, which considers complaints about the NHS and about government departments. It began piloting mediation in 2019, using its own investigators who have trained as mediators. It has seen a rapid expansion of its mediation work, and the majority of the disputes it deals with in this way involve complaints relating to service and treatment by NHS providers.
Court of Protection – A mediation scheme was run for cases that could go to the Court of Protection, which determines disputes involving health and care, property and finances, and welfare of adults who may lack mental capacity to make their own decisions. The cases were not court-referred and the scheme was not court-administered, and cases could be mediated either pre-issue or post-issue. The mediators were independent and had specialist expertise in Court of Protection work. The Court did not have a role in reviewing and approving mediated agreements, but this is a point raised in a recent evaluation of the mediation scheme.[11]
- Statutory (Group 4 of the CEPEJ survey)
Education matters – Mediation for disputes involving the support for pupils with special educational needs and disabilities (SEND) is part of the statutory framework in England under the Children and Families Act 2014 and in Northern Ireland under the Special Educational Needs and Disability Act (Northern Ireland) 2016. For parties wishing to appeal a local government decision on SEND, there is a legal requirement to consider mediation. If no mediation takes place, or the dispute remains unresolved following mediation, the appeal can be lodged with the Tribunal for judicial determination.[12] The mediators are required to be independent and to be accredited under a national set of SEND-specific Practice Standards. The Tribunal plays no role in the mediation, although mediated agreements can be shown to the Tribunal. Failures by local authorities to follow the mediation requirements can be investigated by the Local Government and Social Care Ombudsman.
The above is not a comprehensive list of administrative mediation schemes or models in the UK. Scoping research is needed to identify all of the areas in which administrative mediation takes place across the UK.
What next
The CEPEJ guide sets out a number of responsibilities for CoE member states in relation to identifying, supporting, promoting, and ensuring the quality of administrative mediation. It would be useful to develop a greater awareness here in the UK of the guide and to encourage a wider discussion about the distinctive role of mediation in resolving administrative disputes.
[1] For further information on administrative mediation, see 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; and S. Boyron, “A welcome spotlight on administrative mediation”, REALaw.blog, available at https ://wp.me/pcQ0x2-wt.
[2] The Guidance giving more detail on the Pledge states: ‘There may be cases that are not suitable for settlement through ADR, for example cases involving intentional wrongdoing, abuse of power, public law, Human Rights and vexatious litigants. There will also be disputes where, for example, a legal precedent is needed to clarify the law, or where it would be contrary to the public interest to settle.’ See ‘Dispute Resolution Guidance’, Office of Government Commerce (2002) .
[3] See V. Bondy, L. Mulcahy, M. Doyle and V. Reid, ‘Mediation and Judicial Review: An Empirical Research Study’, Public Law Project (2009), p.2.
[4] The Ministry of Justice consultation paper, ‘Increasing the use of mediation in the civil justice system’, states: ‘Where the Government itself is party to a civil small claim dispute, the case will be exempt from the requirement to mediate.’
[5] For more on the concerns about the use of mediation in public law, see M. Supperstone QC, D. Stilitz and C. Sheldon, ‘ADR and public law’, Public Law 299 (Summer 2006).
[6] See Section 3.4 of Practice Direction 3B, Court of Protection Rules 2017, https://www.judiciary.uk/wp-content/uploads/2022/09/pd-3b-case-pathways-1.pdf
[7] Part 3.4 Practice Direction 3B COPR 2017.
[8] It has been reported that for this Judicial ADR process, the ‘success rate in either resolving the appeal or narrowing the issues is consistently over 50%’. Senior President of Tribunals’ Annual Report 2022, p.43.
[9] Several examples of mediation case studies and mediation schemes for public and administrative disputes are described in V. Bondy and M. Doyle, ‘Mediation in Judicial Review: A practical handbook for lawyers’, Public Law Project (2011); https://www.nuffieldfoundation.org/sites/default/files/files/MJRhandbookFINAL.pdf
[10] More information on this scheme is available in an evaluation report published in February 2020: ‘Mediation in healthcare claims – an evaluation’, NHS Resolution.
[11] J. Lindsey and G. Loomes-Quinn, Evaluation of Mediation in the Court of Protection. Technical Report. University of Essex (2022).
[12] For more details on the statutory mediation requirements and regulations in England, see https://www.ipsea.org.uk/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 (part 2) : Administrative Mediation in the UK”, REALaw.blog available at https://wp.me/pcQ0x2-CL
