60 Propositions for furthering mediation – report from the 2nd International Congress on all Mediations

Posted: 28 September 2023 | Author: Margaret Doyle | Filed under: administrative justice, administrative mediation, Dispute resolution, human rights, international, mandatory mediation, Mediation, system design | Tags: 2nd International Congress on All Mediations, citizens, conference, dispute resolution, mediation | Comments Off on 60 Propositions for furthering mediation – report from the 2nd International Congress on all Mediations

Last year, at the 2^nd International Congress for all Mediations held in Angers, France, I contributed to a roundtable discussion on mandatory administrative mediation (see post here). With colleagues from France and Spain, I discussed the uses of mediation in disputes involving individuals and public bodies, disputes that often involve key public services and fundamental social rights.

The official report of that Congress has now been published, and it contains 60 propositions for developing mediation in a wide range of areas, from climate issues and violence against women to schools, health care, neighbourhoods, and public administration.

I was pleased to see that the propositions put forward from the session on administrative mediation do not include a recommendation for mandatory mediation – there was lively debate at our roundtable on this topic. They do, however, recommend mandatory mediation information sessions for parties, along the lines we currently have in England for disputes about special educational needs and disabilities (SEND) and divorce and separation. The aim of such information sessions is to ensure that parties in dispute have the opportunity and knowledge to make an informed choice about whether or not to use mediation.

Administrative mediation as a means of humanising state bureaucracy

I was also pleased to see that the administrative mediation propositions reflect arguments I made at the Congress for mediation to be used as a resource for fostering a better, more trusting citizen-state relationship, one that prioritises listening and participative democracy. Proposition 43 states clearly that prior to introducing mandatory mediation, it is necessary to embed a culture of ‘humanization of the bureaucracy, reasonable public decisions, listening and trust’.

This proposition reflects the themes in the book I co-authored with Nick O’Brien, who is also a practitioner in administrative justice (tribunal judge in the SEND and Mental Health Review Tribunals). In Reimagining Administrative Justice: Human rights in small places, we set out a reimagined administrative justice landscape, one less constrained by legalism and more closely aligned with human rights and social rights, with what we call a ‘mediation mentality’ at its core.

The report and the 60 propositions

The full report, in French, is available to view or download below.

Below is a summary of the session on administrative mediation, including propositions arising from that session. (I don’t read French, so the translation is courtesy of Google Translate.)

DEVELOPMENT OF ADMINISTRATIVE MEDIATION

How to develop prior mediation and mediation at the initiative of the judge? Does the obligation to mediate contribute to its democratization?

Moderator: Rhita Bousta, Doctor of Law – University of Paris I Panthéon-Sorbonne, HDR lecturer at University of Lille (France).

Speakers: Amaury Lenoir, National Delegate for Mediation for Administrative Jurisdictions COUNCIL OF STATE, Mediation Referent at the Administrative Court of Nice, Mediator (France); Manel Canyameres Lawyer-Mediator (ALTERSIM Firm) (Spain); Margaret Doyle Independent mediator specializing in disputes involving equality issues, researcher in the field of public sector dispute resolution and administrative justice (UK); Bertrand Maréchaux, Mediator, honorary prefect, head of the “administrative mediation” commission of the ANM (France).

The Council of State recalled the benefits of mediation for resolving or preventing a dispute, creating or re-creating social bonds. However, he notes that the actors concerned are still too often hesitant to resort to mediation, even when it is offered to them by the administrative judge. Thus, by requiring those mediated to contact a mediator before being able to refer the matter to the administrative judge, the MPO is an accelerator of the development of mediation in the pre-litigation phase where it is, by nature, more timely and more effective.

In England, the MPO was recently introduced in two areas: on the one hand, conflicts between local government and families over the education of children with disabilities (“SEND”); on the other hand, as a condition for judicial referral for civil disputes for an amount less than £10,000. Also, mediation with a public administration is not only a quick and inexpensive procedure for the parties: the MPO should be based on the interest of all (good management of public funds, good administration).

This procedure raises more pronounced reluctance in Spain. Although it seems ruled out for the moment, a reform establishing compulsory mediation in the area of ​​civil procedure is, however, on the verge of being adopted. Unlike France, it is liberal mediators who are called upon in Spain: the prospect of an MPO with an administration supervised by an institutional mediator is very unlikely.

It is therefore the legal and administrative culture which is the key element of reflection. In France, administrative mediation and the MPO in particular, while desirable, still encounter numerous obstacles coming both from the State, a public “power” disinclined to negotiate, and from magistrates or lawyers sometimes opposing in a binary manner the law (to prevail) and the equity. The two-headed elected official/official within local authorities and the legitimacy derived from universal suffrage would also sometimes make the MPO difficult for an administration to accept.

What assessment can, at this stage, be made of the MPO with a public administration? What legal environment is favorable, or even necessary, for its viability?

This involves ensuring a profound change in administrative justice towards participatory and collaborative justice; humanization of the bureaucracy, reasonable public decisions, listening and trust: this context must precede the development of the MPO.

Proposition No. 42:

Recommend that central or decentralized state services systematically accept a request for mediation sent by the judge? The choice of mediation should also be made based on the complexity or even the stakes of the case.

Proposition No. 43:

Remove certain administrative burdens and open the “Télérecours” software to mediators. Beyond these observations, Mandatory Preliminary Mediation (MPO) must not make us forget that mediation is a state of mind before being a procedure, the ideal remaining to prevent conflict. It is, firstly, a matter of ensuring a profound change in administrative justice towards participatory and collaborative justice. Humanization of the bureaucracy, reasonable public decisions, listening and trust: this context must precede the development of the MPO.

Proposition No. 44:

For mediations initiated by the judge: create an injunction to meet with a mediator (IRM) already used by magistrates of the judiciary. This should make it possible to develop the number of disputes referred to mediation by the administrative judge, which represented, in 2021, 1% of the cases brought before the administrative courts (approximately 2,200 mediations).

Proposition No. 45:

Establish, as an alternative to the MPO, the injunction to attend an information session ordered by the judge, information then delivered in a court room by a mediator to the parties and their lawyer in the respect for the principle of confidentiality. Although some see this as a decline in the freedom of the parties, this alternative would be a more effective way than the MPO to keep mediation in the hands of the mediators.

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