Report from Angers – mediation in citizen and state disputes
Posted: 13 March 2023 Filed under: administrative justice, administrative mediation, comparative, conference, human rights, international, mandatory mediation, Mediation, Mediation styles, ombuds, Special educational needs, system design | Tags: administrative mediation, Angers, International Congress for All Mediations, mediation 1 Comment
This post reports on the 2nd International Mediation Congress, held in Angers, France, on 5-7 October 2022. Many of the conference sessions explored the role of mediation in citizen-state disputes, including ‘civic mediation’ for collective community disputes and the use of mediation in school-based disputes. The author of this post participated in a conference roundtable discussion on the question of mandatory mediation in administrative disputes, particularly involving social security appeals, public-sector employment disputes, and challenges to decision-making on special educational needs and disabilities. The participants compared attitudes to mandatory mediation from the French, Spanish, and English perspectives.
Mediation and citizen rights
How refreshing to hear mediation being described as opening up access to rights. In her opening speech to the 2nd International Mediation Congress in Angers, Claire Hedon, the Défenseure des Droits for France, described the way her ombud office – and its team of 550 ‘institutional’ mediators across the country – uses mediation to challenge discrimination in housing, address conflict within cities, and secure provision for education support for disabled children. She also described the way, through its mediation work, the ombud acts as a contact point between agencies and authorities, opening up a dialogue that ensures a holistic and networked response to citizen grievance.
The Défenseure des Droits is the national ombud and human rights organisation for France[1]. Her office was involved in a pilot project using mandatory mediation for what are called ‘administrative disputes’, or disputes between citizens and public authorities. The MPO (mandatory prior mediation) pilot involved free mandatory mediation in disputes raised by public employees and those raised by applicants for social security benefits. The pilot was conducted over two years, and the findings from the pilot assessment are examined in a recent report:
‘…it emerges from this experiment and in particular from the qualitative study carried out by the Observatory of the Defender of Rights among claimants followed by the institution from 2018 to 2020 (“Use of mandatory prior mediation: study with claimants”, June 2021), that the MPO is a device that allows new access to rights, in particular for people who would not have gone to court. The mandatory prior mediation system can thus offer a vulnerable public, for whom access to a judge is often difficult, the possibility of free mediation devolved to a neutral, impartial and independent third party. In doing so, it opens up a real space for dialogue conducive to access to rights, whether it is access to information on the right and benefits, access to the benefits themselves and, where applicable, access to the judge.’[2]
One of the conclusions reached by the ombud office is that with increased digitalisation and remoteness of decision-making by public bodies, mediation can offer a much-needed opportunity for in-person dialogue:
‘In conclusion to this study, the Defender of Rights points out that: “people who have used the MPO procedure say that they have found with the Defender of Rights’ delegates an attentive ear and an opportunity for dialogue which they lacked in the context of their ordinary “relationships” with the bodies whose decision they contested. At a time of the dematerialization of public services and the dehumanization that it often entails, this reminds us of the need for direct, oral and even often “face-to-face” contact to allow users to be heard and to assert their rights”.’[3]
A discussion by Sophie Boyron (University of Birmingham) of the mandatory mediation pilot[4] can be found on the REALaw blog here.
Administrative mediation roundtable
Rhita Bousta, Lecturer in Public Law at the University of Lille, was the moderator for the conference roundtable on mandatory administrative mediation. Professor Bousta is the author of The notion of administrative mediation (Harmattan, Paris, 2021) and is an expert in administrative comparative law and human rights. She discusses administrative mediation in an interview for Lexbase Public Review[1] and in a piece on the REALaw blog.[2]
Speakers in the roundtable included Amaury Lenoir, National mediation delegate for administrative courts at the Conseil D’Etat and Referent mediation at the Administrative Court of Nice. Amaury discussed the outcome of the MPO pilot and the benefits of mandatory mediation in this context. He reported that during the pilot, more than 4,800 mandatory mediations were conducted, with a success rate (agreements) of nearly 76% and an average duration of less than two months. The findings of the pilot fed into Parliamentary debates on new legislation that puts the provision of mandatory mediation on a permanent basis in relation to disputes involving public-sector employees (the Pôle emploi), education (the Ministry of National Education) and social security (the management centers of the territorial public service).
Also speaking from the French perspective was Bertrand Maréchaux, a mediator and honorary prefect, head of the administrative mediation commission of the ANM (National Association of Mediators) and retired judge. Bertrand considered the obstacles to administrative mediation in France. He suggested that a cultural attachment to the law and legalism, as well as to the written word, hinders the take-up of mediation: ‘it is the written word and the legal reasoning that must take precedence. Fairness cannot take precedence over law,’ he said. Other obstacles are the perceived legitimacy of the state and the decision-making of public authorities, which is often considered not to be amenable to negotiation; and the need to deliberate on the agreement, or even have it approved by the court, hampering decision-making within mediation.
The position in Spain was explored by Manel Canyameres, a lawyer and an independent mediator, who explained that there is a distinction to be made between external (known as ‘liberal’) mediators and institutional mediators. In Spain, the latter are the ombuds or sindicos (territorial mediators). However, when administrative disputes are mediated, these mediations are conducted by external mediators. In his view, this distinction is important in the context of disputes between citizen and state, particularly when discussing mandatory mediation. Although Spain has not introduced mandatory mediation for administrative disputes, progress has been made: there are no limits on the types of disputes that can be mediated, and each Autonomous Municipality of Spain (territorial division like the Departments in France) has made it possible to implement mediation ‘within the jurisdictional framework’.
I contributed a view from the UK – or more accurately, from England, where mandatory mediation has been proposed by the Ministry of Justice, for small claims in county court, and by the Department for Education, for disputes involving special educational needs and disabilities (SEND). My point is that in adopting the claims made for mediation in civil and commercial disputes (that it is faster and cheaper), policy-makers in administrative justice disputes devalue what mediation can offer in citizen-state disputes and fail to take account of the ways that these areas of dispute often involve fundamental rights and issues of trust and a wider public interest.
In the special educational needs and disabilities (SEND) context in England, mediation remains voluntary, although there is a current requirement to consider mediation before lodging an appeal to tribunal, and there is a proposal to require participation in mediation. The impetus for mediation in this context is usually a challenge to a specific local authority decision that can be appealed to the Tribunal, but in reality the mediation encompasses a multiplicity of issues that go beyond the grounds for appeal, reflecting the ongoing relationship between families and schools and local government. It is not only the interests and needs of the parties attending that have to be taken into account. Collective interests are inherent in the duties that local authority SEND teams have for accounting for use of public funds, in schools’ needs to be supported, and in the needs of all pupils in the community to have access to inclusive education. Mediation in this context is not necessarily a cheaper faster alternative to the tribunal. Instead, it is a means of democratic co-design that offers the promise of addressing both individual and collective needs; it is essentially about connection, and it embraces conflict as a positive force for change.
Yet UK Government policy for the past 25 years has set out to promote mediation and other informal mechanisms of resolution as an answer to the perceived ‘problem’ of overcrowding in, and lack of access to, the formal justice system. What is needed, however, is an integrated network of complementary approaches that embraces a form of mediation that is more than about resolution or settlement. This shift does not prioritise cost and speed; instead it prioritises principles of openness and community interest that are compatible with fostering democratic engagement and accountability, mutualism and difference.
At the roundtable, participants expressed a range of views about mandatory mediation and questioned what is meant by ‘mandatory’. In England, as elsewhere, there are requirements to consider mediation in some areas of dispute (family, SEND), but so far no requirement to engage in the mediation process. Some mediators take the view that because settlement is not mandatory (ie the parties always have the option to leave mediation without reaching an agreement), there is no contradiction between mandatory participation in mediation and the values of voluntariness and self-determination that are fundamental to the process.
There were also widely shared views about the role that mediation has in administrative disputes. Rhita Bousta noted in the previously cited interview with Lexbase Public[3] that in the context of citizen-state disputes, mediation should not be positioned as an alternative to the courts but as a distinct and complementary process.
Pedagogical mediation
One of the concepts that has been discussed in the context of the MPO pilot is that of pedagogical (or educational) mediation. This is when the public authority does not agree to change its initial decision (the decisions being challenged by the individual citizen or groups of citizens), but the mediation offers an opportunity to clarify the reasons for the decision. A successful outcome described as ‘educational mediation’ therefore is one in which the decision is accepted by all parties.
We lack this concept in the UK; although such outcomes are achieved in mediation, they are often considered by the individual and his or her legal representatives as a concession rather than a successful outcome. A concept of ‘educational‘ or pedagogical mediation requires much greater public confidence in decision-making by public authorities than is currently experienced in England.
Sophie Boyron discusses this concept of educational mediation in a blog post on REALaw in November 2022, in which she notes that more research is needed on this and other aspects of administrative mediation. ‘To work’ , she writes, ‘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.’[1]
If we are to position mediation as more than a settlement mechanism, we should embrace the idea that in some cases (where decision-making is robust and transparent) the dialogue in mediation will result in better understanding, and acceptance, of the public authority’s decision. Mediation in this sense is therefore more than mere dispute resolution or the creation of a safe space for negotiated justice. It becomes instead a technique for allowing citizens’ voices to be heard, for constructing bridge-building dialogue and for the restoration of relationships that are public and institutional rather than private and personal. In order to achieve that, there needs to be a channel by which lessons learned in mediation can feed upstream, back into initial decision-making, in order to improve decisions and derive benefit from mediation’s preventive potential.
One fascinating outcome of the roundtable discussion on mandatory administrative mediation is the recognition that mediation and initial decision-making are intertwined. Although in the UK we are far from accepting mandatory mediation in administrative justice contexts (compared with wider acceptance of it in civil and commercial disputes), it is clear that any attempt to harness the added value that mediation can bring requires improved initial decision-making by public authorities.
Where next for administrative mediation in the UK?
The pockets of administration where mediation currently takes place across the UK make up an ad hoc patchwork of isolated areas of practice – education, tax matters, planning, health care. Each government body that engages in mediation to resolve disputes with citizens develops its own set of procedures and practices. For example, the NHS uses mediation for a large number of clinical negligence claims, through its NHS Resolution scheme, which contracts with an independent mediation provider. Others employ in-house staff trained as mediators, such as the Parliamentary and Health Service Ombudsman. Some administrative mediators are specially accredited, such as in special educational needs, but most are not. Very little public reporting is done by any of the administrative mediation schemes in existence.
What is needed is initial scoping research to identify how, and for which disputes, administrative mediation is happening in the UK. A next step would be to take on board the recent work by the Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ), in its survey member states and subsequent guide to administrative mediation, which is not well known in the UK.[1] Collaboration on creating a public-sector mediation model could be an innovative exercise in design thinking, employing fresh thinking on orthodoxies such as confidentiality and the role of ‘settlement’ as well as explorations of mediation’s added value in disputes involving wider public interest, human rights and equalities, and collective citizen grievance.
Margaret Doyle is a Visiting Research Fellow at the University of Essex School of Law and an independent mediator. She has conducted research on the use of mediation in small claims, in judicial review, in ombuds practice and in education. She is the co-author, with Nick O’Brien, of Reimagining Administrative Justice: Human Rights in Small Places (Palgrave Macmillan, 2019).
[1] A recent area of the Défenseure des Droiuts’ work involves receiving complaints from Liverpool football fans about their treatment by French security forces at the Stade de France stadium on 28 May 2022. The work of the Défenseure des Droits in relation to security forces is explained in this English-language leaflet: https://www.defenseurdesdroits.fr/sites/default/files/atoms/files/dep-deonto-100×210-eng-num-05.22_01.pdf.
[2] Ibid.
[3] S Boyron, “Experimenting with compulsory mediation: assessment and continuation”, REALaw.blog available at https://realaw.blog/?p=1225
[4] ‘What news for administrative mediation?’, Interview with R Bousta, Yann Le Foll, available at https://www.lexbase.fr/article-juridique/74610888-document-elastique
[5] 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.
[6] ‘What news for administrative mediation – Questions to Rhita Bousta, Lecturer – HDR in public law, University of Lille’, interview by Yann Le Foll, editor-in-chief of Lexbase Public, December 14, 2021, available at https://www.lexbase.fr/revues-juridiques/74610888-document-elastique#OpenLink
[7] S Boyron, ‘A welcome spotlight on administrative mediation’, https://realaw.blog/2022/11/22/a-welcome-spotlight-on-administrative-mediation-by-s-boyron/
[8] CEPEJ, ‘Promoting mediation to resolve administrative disputes in Council of Europe member states’, December 2022, https://rm.coe.int/cepej-2022-11-promoting-administrative-mediation-en-adopted/1680a95692
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