university of groningen mediation in administrative ... · 19 mediation in administrative...

University of Groningen

Mediation in Administrative Proceedingsde Graaf, K.J.; Marseille, A.T.; Tolsma, H.D.

Published in:Alternative Dispute Resolution in European Administrative Law

IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite fromit. Please check the document version below.

Document VersionEarly version, also known as pre-print

Publication date:2014

Link to publication in University of Groningen/UMCG research database

Citation for published version (APA):de Graaf, K. J., Marseille, A. T., & Tolsma, H. D. (2014). Mediation in Administrative Proceedings: AComparative Perspective. In D. C. Dragos, & B. Neamtu (Eds.), Alternative Dispute Resolution in EuropeanAdministrative Law (pp. 589-605). Berlin-Heidelberg: Springer.

CopyrightOther than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of theauthor(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons).

Take-down policyIf you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediatelyand investigate your claim.

Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons thenumber of authors shown on this cover page is limited to 10 maximum.

Download date: 27-02-2020

https://www.rug.nl/research/portal/en/publications/mediation-in-administrative-proceedings(d05da41d-69b0-4871-9f23-e45a6142496b).html

https://www.rug.nl/research/portal/en/persons/kars-graaf-de(835d3840-5e0e-4d10-afa7-345c1960ff7b).html

https://www.rug.nl/research/portal/en/persons/albert-marseille(fea18af8-4c44-424d-a6ee-d677a3a92dc4).html

https://www.rug.nl/research/portal/en/persons/hanna-tolsma(86e64441-583c-48de-ae72-67eed7fd9194).html



Chapter 19

Mediation in Administrative Proceedings:

A Comparative Perspective

K.J. de Graaf, A.T. Marseille, and H.D. Tolsma

19.1 Introduction

Mediation is a subject of keen interest in the European Union member states. It is no

surprise that the method is also gaining ground in the efforts to resolve admini-

strative law disputes in an amicable way. Mediation brings the promise of an

interest-based, fast, cheap, and informal resolution for different kinds of disputes.

The rise of mediation and its potential benefits over traditional administrative court

proceedings is met with enthusiasm in some countries and with skepticism in

others. It is therefore a suitable subject for a comparative analysis and an outlook

towards the future.

This chapter is concerned with all forms of alternative dispute resolution (ADR)

in administrative proceedings but focuses in specific on mediation in administrative

law disputes between citizens and administrative authorities. It will provide a

comparative analysis for which the chapters on the national legal systems in this

volume have served as a basis. We will start with a brief introduction to admini-

strative law disputes and ADR in general (Sect. 19.2) and present the influences of

the European Union on the use of mediation (Sect. 19.3). After that, we will provide

a general legal perspective on ADR in administrative law, which will focus on

theoretical, substantive, and procedural constraints (Sect. 19.4). All chapters on

national legal systems refer to the important implications of the rule of law on the

development of ADR in administrative proceedings. We will then provide a

comparative perspective and an analysis on the basis of some relevant questions

into the way mediation in administrative law disputes fits within the structure of the

national legal systems of administrative adjudication (Sect. 19.5). This chapter will

end with some concluding remarks on the role of mediation in administrative

proceedings (Sect. 19.6).

K.J. de Graaf (*) • A.T. Marseille • H.D. Tolsma

University of Groningen, P.O. Box 716, 9700 Groningen, The Netherlands

e-mail: [email protected]; [email protected]; [email protected]

D.C. Dragos and B. Neamtu (eds.), Alternative Dispute Resolution in EuropeanAdministrative Law, DOI 10.1007/978-3-642-34946-1_19,© Springer-Verlag Berlin Heidelberg 2015

591

UGrGUNCO

RREC

TEDuropean Unuropean U

round in theound in the

ay. Mediatioay. Mediatio

l resolutionl resolution

benefits ovebenefits ove

m in somem in som

ubject for a cubject for a c

with all formsith all forms

s but focusess but focuse

zens and adens and ad

which the cwhich the c

a basis. Wea basis. We

and ADR inand ADR i

n on the use on on the use

erspective ospectiv

stantive, andstantive, an

systems refystems re

nt of ADRnt of ADR

ve perspective perspe

way mediatiway mediati

al legal systelegal syst

with somewith some

oceedings (Sceedings (

U

PROO

F

589

589

19.2 Administrative Law Disputes and Alternative Dispute

Resolution

What disputes should be considered administrative law disputes, and what are

alternative forms of dispute resolution in administrative proceedings? Without

hoping to present an answer to those important questions on the divide between

administrative and private law that will suffice for all European national legal

systems and with some hazard of oversimplifying this crucial demarcation, we

will consider any dispute on the (non)application of a competence by an admini-

strative authority that changes the legal position of a person or good in a way that no

ordinary (legal) person is able to do, as subjected to administrative law and,

therefore, an administrative law dispute. National legal systems in Europe are

familiar with either a specialized administrative court system or special procedural

rules on administrative law disputes between citizens and administrative authori-

ties. One common element of administrative dispute resolution in countries that

apply the rule of law is that citizens are entitled to appeal against an administrative

decision by an administrative authority and that they are able to request the

annulment of such a decision by a court when it is contrary to written or unwritten

public law (appeal procedure or judicial review). This form of appeal is sometimes

preceded by a (mandatory) administrative procedure in which the contested deci-

sion is reviewed either by the administrative authority that made the decision

(internal review) or by another administrative authority on both questions of

legality and the use of discretion (objection procedure or administrative review).

For the purpose of this chapter, we will consider appeal procedures and objection

procedures as normal forms of administrative dispute resolution.

This chapter focuses on alternative forms of dispute resolution in administrative

proceedings. That subject is closely related to negotiated decision making by

administrative authorities.1 It is quite clear that there is an important relation

between negotiated decision making and forms of ADR like negotiation, concili-

ation, and mediation. The quality of administrative decision making could benefit

from the use of mediation techniques by administrative authorities.

ADR in administrative proceedings can refer to different forms of dispute

resolution. Arbitration is a technique where the disputants refer their dispute to

one or more persons (arbitrators or arbiters) by whose decision they agree to be

bound; the decision is legally binding for both sides and enforceable. Arbitration is

often used for the resolution of commercial disputes, particularly in the context of

international commercial transactions. The use of arbitration is also frequently

employed in consumer and employment matters, where arbitration may be man-

dated by the terms of employment or commercial contracts. There aren’t many

examples of arbitration in administrative law disputes for reasons that are obvious

when analyzing the constraints for ADR in administrative law (see Sect. 19.2).

1 See, on that issue, De Waard (2000).

592 K.J. de Graaf et al.

UNCO

RREC

TED

ispu

d to appead to app

nd that theyd that the

hen it is conthen it is cont

review). Thiseview). Thi

ive proceduive procedu

inistrative ainistrative a

dministrativministrati

(objection p(objectio

we will conwe will co

f administraf administra

alternative folternative f

t is closelyt is closely

es.es.11 It is quIt is qu

ecision makiision m

. The quality. The qualit

ediation techdiation tech

inistrative pinistrative

itrationitration is ais a

persons (arbersons (ar

decision is ledecision is le

d for the resofor the re

ional commional comm

oyed in consin con

ed by the terd by the te

xamples of amples of a

when analyzwhen anal

PROO

Fand what arnd wh

dings? Withdings? With

e divide betdivide b

pean nationaean nationa

cial demarcacial dema

mpetence byetence by

n or good in an or good in a

o administrao administr

egal systemegal sys

rt system orrt system or

ens and admens and

resoluresol

When national chapters refer to arbitration, it is to point out that arbitration in

administrative law is either rare2 or can only be used in disputes that resemble

private law disputes in the sense that disputants are able and allowed to arrange for

the legal relationship between them without breaching the law.3 Arbitration could

be applied in disputes regarding public–private contracts, concessions, and pro-

curement but is not well suited to disputes considered classic administrative

disputes. Therefore, this chapter will not focus on arbitration as a specific form

of ADR.

Mediation4 is a form of negotiation facilitated by a neutral third party (mediator)

and/or experts.5 It is based on the continuing voluntary consent of all disputants.

Unlike an arbitrator, the mediator has no authority to impose a decision or other

measures upon the parties. The goal of mediation is generally to seek a future-

oriented solution to the dispute (conciliation), thus allowing the parties to move

forward and continue their cooperation. Such a forward-oriented perspective is

perceived to enable value-added cooperative approaches. The mediator uses vari-

ous techniques to open or improve dialogue between disputants, aiming to help the

parties reach an agreement. The neutral third party, the mediator, must be indepen-

dent and impartial. Confidentiality and secrecy are to be observed during and after

the process of mediation by all parties concerned. The three basic elements of

mediation (voluntariness, impartiality, and confidentiality) can also be found in the

1980 UNCITRAL Model Rules on Conciliation and are essential to a number of

legislative acts on mediation in European countries.6 The techniques of the medi-

ator have been refined on the basis of predominantly American research on the

benefits of “principled bargaining.”7 Mediation has changed into a professional

activity in which mediators have to be certified and have to demonstrate they have

expert knowledge on the mediation techniques. In most cases, they must be linked

to professional bodies that monitor and guarantee quality. Mediation can theoreti-

cally be used before or during administrative proceedings like objection or appeal

procedures (administration-based and court-annexed mediation), and the positive

outcome is likely to have an effect on the outcome of these procedures and on the

contested decisions. In European countries such as the Netherlands, England,

France, Germany and other countries, mediation and mediation techniques are

2 See Belgium (Sect. 6.4), which allows persons governed by public law to be party to arbitration

(and mediation) in cases explicitly established by statute or royal decree. Also, see Germany

(Sects. 1.1 and 1.4).3 Cf. Romania (Sect. 14.5), which will allow mediation only regarding rights that the parties can

dispose of. Also see Serbia (Sect. 15.4).4 See, for recent comparative information on mediation in general, Hopt and Steffek (2013).5 Also see the “authorized inspector” in the Czech Republic (Sect. 13.4.2.2) and the “liaison

officer” in Hungary (Sects. 10.2.2 and 10.4). Both are seen as alternatives to the normal admini-

strative law remedies.6 See UNCITRAL Conciliation Rules, A/RES/35/52, 10 December 1980 (articles 2, 7, 14 and 20),

arguably the world’s first set of mediation rules.7 Golann (2009) and Goldberg et al. (1985).

19 Mediation in Administrative Proceedings: A Comparative Perspective 593

UNCO

RREC

TED

ween

party, the mparty, the

ecy are to beecy are to b

concerned. Tconcerned. T

nd confidentnd confident

onciliation aonciliation a

opean countropean countr

is of predomis of predom

ng.”g.”7 Mediated

ve to be certive to be cert

diation techndiation techn

monitor andmonitor and

uring adminiuring admin

tion-based anion-based a

ave an effecave an ef

. In Europe. In Europe

and other cand other

O(Sect. 6.4), whSect. 6.4), wh

on) in cases eon) in cases

and 1.4).nd

mania (Sect. 14mania (Sect. 14

e of. Also see SAlso se

, for recent cofor recent co

Also see the “so see the

officer” in Hunfficer” in H

strative law rstrative law r

UNCUNC

PROO

F

arranarr

ration couration

ions, and prons, and

c administrac administra

as a specifica specifi

third party (third party

onsent of allent of all

mpose a decimpose a dec

generally togenerally to

allowing theallowing th

orward-orienorward-orien

aches. Theaches.

utauta

used in an increasing extent to avoid or to settle disputes about governmental

decisions in all sorts of administrative law disputes.

Since the mid-1990s mediation is on the rise as alternative form for settling

disputes between citizens and administrative authorities. The appeal of mediation is

that it is flexible and provides disputants with a quicker, cheaper, and emotionally

less stressful manner to handle their dispute than the complex and highly formal

legal proceedings. Mediation also increases the control the parties have over the

resolution of their dispute. One of the goals of stimulating mediation in admini-

strative law disputes is to enhance the efficiency and effectiveness of normal

administrative proceedings by decreasing the number of court judgments necessary

to resolve administrative disputes. Also, it is believed that using mediation or

mediation techniques in administrative law disputes will lead to higher acceptance

of decisions and better relations (and trust) between government and its citizens.

Mediation also scores high on aspects of procedural justice; parties have the

opportunity to be heard and are able to take control of the process and the outcome

of dispute resolution.8 In recent years, several European countries have

implemented a policy to grow awareness among civil servants, lawyers, and judges

about the potential positive influence of mediation and the use of mediation

techniques (effective communication and conflict resolution skills) during admini-

strative proceedings. National legislatures have introduced legislation concerned

with mediation in general, and in some cases those regulations refer to mediation in

administrative proceedings as well.

19.3 Influences of the European Union on the Use

of Mediation

In light of the comparative perspective of this chapter, a rather interesting question

is whether the use of mediation was triggered by the legislative acts of the European

Union in any way.

There is no European Administrative Procedural Act. However, a mandate to

codify general rules on administrative (procedural) law for the European institu-

tions can be found in Article 298 TFEU. It requires the European Parliament and the

Council to adopt, in accordance with the ordinary legislative procedure, the neces-

sary provisions in order to achieve “an open, efficient and independent European

administration.” It aims to ensure that the Union legislature develops, through

legally binding rules, the fundamental right to good administration enshrined in

Article 41 CFREU based on the codes of good administrative behavior developed

by the European Ombudsman, the Parliament, and the Commission. Although there

certainly is a relation between good administrative behavior and the use of medi-

ation (techniques), there is usually no direct referral to it in legal documents. On the

8 See Marseille and De Graaf (2012), pp. 136–137.


UNCO

RREC

TED

everal

ng civil servng civil se

mediation amediation

conflict resoconflict reso

res have intres have int

cases thosecases those

EuropeanEuropean

tive perspective perspect

mediation wamediation w

uropean Admopean

rules on admrules on adm

und in Articnd in Arti

dopt, in accodopt, in acco

sions in ordesions in o

tration.” It aration.” It

y binding rulbinding ru

cle 41 CFREle 41 CFRE

the Europeathe Europ

ertainly is anly is a

ation (technation (tech

PROO

F

for seor

mediationmediat

nd emotionald emotio

nd highly ford highly for

ties have oves have o

mediation inmediation in

ectiveness oectiveness

urt judgmentjudgmen

that usingthat using

ll lead to higl lead to hig

governmentgovernme

dural justicedural justice

of the procof the p

urouro

basis of the mandate enshrined in Article 298 TFEU, the European Parliament’s

“Working Group on EU Administrative Law (WGAL)” published a working

document “State of play and future prospects for EU Administrative Law” on

19 October 2011. One of the recommendations to the European Parliament con-

cerns the internal review of administrative decisions of European institutions

(objection procedures). Such procedures are treated in many different ways

throughout different EU agencies, bodies, and offices. The working group recom-

mends (nr. 13) that any future general instrument of internal review of decisions

“should attempt to draw conclusions from past experience and incorporate some

generally applicable provisions which foster alternative dispute resolution without

prejudice to judicial remedies.” However, there is no codification of European

administrative law at Union level at the moment, and it appears that this future

process of codification will not play an important role where the development of

ADR in administrative proceedings is concerned.9 The principle of national proce-

dural autonomy also plays an important role in reaching the conclusion that the

primary goal of European law isn’t the harmonization of administrative procedural

law in all Member States. According to the principle of procedural autonomy, the

national courts perform their duties as “Union courts” within the context of the

national system of judicial protection and procedural law.10 The European Union is

not primarily concerned with the development of mediation or ADR in administra-

tive proceedings in the legal systems of the Member States.

Some national chapters refer to recommendation Rec(2001)9 adopted by the

Committee of Ministers of the Council of Europe on 5 September 2001 on alter-

natives to litigation between administrative authorities and private parties. The

impact of that recommendation is considered not very significant to the develop-

ment of ADR in general administrative law in the European countries.11 The

recommendation itself acknowledges some of the inherent problems of ADR in

administrative law disputes.12 Relevant for the development of ADR in European

countries seems to be the Mediation Directive that was to be implemented by May

2011 and is now applied in the Member States. The Directive concerns mediation in

9Most regulations on EU agencies do not contain provisions on alternative means of dispute

resolution (see the chapter on European Union Law, Sect. 16.5.1.2). The document of the Working

Group on EU Administrative Law does acknowledge the crucial role of the European Ombudsman

and the Code of Good Administrative Behavior in applying mediation and mediation techniques

(see recommendation nr. 23) and furthermore refers to Article 7(4) of Council Decision of

2 November 2004 establishing the European Union Civil Service Tribunal, 2004/752/EC,

Euratom, OJ L 333, 9.11.2004, p. 7: “At all stages of the procedure, including the time when the

application is filed, the Civil Service Tribunal may examine the possibilities of an amicable

settlement of the dispute and may try to facilitate such settlement.”10 See Jans et al. (2007), p. 40.11 The national chapter on Slovenia refers to the recommendation in a footnote (Sect. 12.5), and the

chapter on Spain states that it had null or very little impact on Spain’s basic administrative law

(Sect. 8.3.2).12 Cf. Kovac (2010), p. 745.


UNCO

RREC

TED

zation

rinciple of principle o

nion courts”nion courts”

procedural laprocedural la

pment of mement of me

of the Membof the Memb

recommendarecommend

uncil of Euruncil of Eur

ministrativeministrativ

n is considern is conside

dministrativedministrative

nowledges sowledges s

es.es.1212 RelevaReleva

he Mediationhe Mediation

ed in the Meed in the M

ORs on EU agens on EU ag

he chapter on Echapter on

AdministrativeAdministrative

e of Good Ade of Good

mmendation nmendation n

mber 2004 esmber 2004 es

m, OJ L 333,L 333

cation is filedation is filed

tlement of theement of th

See Jans et aans e11 The nationThe nation

er onr on

PROO

F

e LawL

liament coniament

an institution institu

different wdifferent w

king group reng group

review of dereview of de

and incorpornd incorp

spute resolutte resolut

codificationcodification

d it appearsit appears

le where thele where th

The principleThe principle

aching theaching

admadm

cross-border civil and commercial disputes.13 This EU directive defines mediation

as a confidential and structured proceeding in which the parties, voluntarily and on

their own responsibility, seek an amicable settlement of their dispute with the

assistance of a mediator. The Directive sets out comprehensive provisions on

confidentiality, court-mandated mediation, and the effect of the statutes of limi-

tations. Also, it demands of Member States to set up a mechanism by which

agreements resulting from mediation can be rendered enforceable if both parties

so request; the choice of mechanism is left to the Member States. Strictly speaking,

the directive isn’t relevant for administrative law.14 Furthermore, the relevance the

directive has is confined to cross-border disputes. Despite those inherent limi-

tations, several of the national chapters deservedly refer to it as relevant for the

development of mediation in administrative disputes. In Germany, for example, the

legislature implemented the Mediation Directive in such a way that the implications

are relevant for both civil and commercial disputes and administrative disputes

even if they cannot be considered cross-border disputes.15 In most European

countries, however, the Mediation Directive was transposed into the national

legal system by introducing legislation for the use of mediation in all civil and

commercial disputes. Few European countries have introduced legislation that is

specifically tailored to mediation in administrative proceedings between admini-

strative authorities and citizens.

19.4 Common Constraints for ADR in Administrative

Proceedings

The use of mediation—or mediation techniques—can be incorporated into the

process of administrative decision making by interpreting existing legal standards

and deduce a legal duty for administrative authorities to strive toward consensus.

Where appropriate and legal, the existence of this duty can also have significant

impact after a decision has been taken and during administrative proceedings. Some

have indeed argued that such a legal duty to strive for consensus could be derived

from the principle of due care.16 However, a traditional reaction to the use of

mediation in order to resolve administrative law disputes is that it is complicated

for a number of reasons. The reaction is triggered by a number of elements in both

the relation between administrative authorities and citizens and the structure and

13Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain

aspects of mediation in civil and commercial matters, OJ L 136, 24-5-2008, pp. 3–8.14 See on the implementation of the Directive and mediation in general in the EU: de Palo and

Trevor (2012).15 See the national chapter on Germany (Sect. 1.4.2).16 Cf. Tolsma (2007), p. 74. Also see Hartel (2005), pp. 753–762; and Pitschas (2004), pp. 396–

403. De Waard (2000), p. 229 speaks of an “implied legal duty to negotiate.”


UNCO

RREC

TED

was

he use of mhe use of

ries have inties have in

inistrative prnistrative pr

ts for ADRts for A

r mediationmediation

decision madecision m

y for adminiy for admini

nd legal, thend legal, th

ion has beenon has been

ed that suchd that s

ple of due cple of due

order to resoder to res

r of reasons.r of reasons.

n between an betwee

Nrective 2008/5ective 2008/5

pects of mediatects of medi

See on the imn the

Trevor (2012Trevor (2012

the nthe n

PROO

F

e wie w

rovisions orovision

atutes of limtutes of

anism by whanism by w

ble if both pe if both

es. Strictly sps. Strictly sp

more, the releore, the re

te those inhthose inh

r to it as relr to it as re

Germany, fGermany, f

ch a way thach a way th

es and admies and adm

disputes.dispute 15

spospo

characteristics of administrative law that at first sight seem to be at odds with the

idea of mediation and conciliation. In this section, we try to give an overview of

possible constraints for mediation in administrative proceedings; some of these

issues have been raised in the national chapters as well. It should be kept in mind

that this overview of potential constraints on mediation in administrative law

disputes is not meant to imply that those disputes are not well suited to mediation

as a method of dispute resolution.

19.4.1 The Relationship Between Citizensand Administrative Authorities

In countries where the rule of law is firmly established in the legal system, any

administrative authority will have to interact with its citizens while taking into

account its special position. In general, such a legal system will allow the amend-

ment of the legal position of a citizen by a unilateral decision of an administrative

authority, although several European countries implemented legislation that would

equally allow an administrative authority to serve the general interest by using the

form of a contract with citizens to come to a similar change of the legal position of

the citizen.17 Therefore, the relationship between citizens and administrative

authorities is, in a traditional view, de iure asymmetrical, authoritarian, and hier-

archical. This view of the relationship seems contradictory to the idea of facilitated

negotiation to end a dispute in administrative proceedings. In most western coun-

tries, however, legal scholars observe a tendency towards cooperative arrangements

between administrative authorities and private actors. There are a number of

reasons for this tendency. One is that the legal systems are overloaded with complex

regulations, and the executive is unable to look after the execution of the public

interest without the help of its citizens. Furthermore, the idea that citizens are

nothing more than the object of the actions of the administration is obsolete.

Administrative authorities strive towards good governance and a service-oriented

approach to decision making by allowing meaningful participation in the decision-

making procedure. Unlike the private law relations between private actors, the core

of the legal relation between administrative authorities and citizens is unequal.

In fact, most legal systems acknowledge that the relation between them is de factoasymmetrical; in many situations, the administrative authority can be characterized

as the Repeat Player and the citizen as the One Shotter.18 The latter usually has less

experience, less financial means, and less legal expertise. Many principles under-

lying administrative proceedings in the countries that are discussed in this book

regard this inequality as a reason to attempt to level it out by allowing the

17 See, for instance, the explicit references thereto in the chapters on Germany (Sect. 1.4.1) and the

Czech Republic (Sect. 13.4.2.1).18 Galanter (1974), pp. 95–160.


UNCO

RREC

TED

legal segal

nilateral decilateral de

ies implemeies impleme

to serve theto serve the

to a similarto a similar

nship betwenship betwe

de iurede iure asym

hip seems cohip seems co

dministrativministrat

bserve a tendbserve a tend

horities andhorities and

One is that thene is that the

cutive is unautive is una

elp of its citlp of its cit

he object ofhe object

horities strivehorities striv

ion making bn mak

ure. Unlike thre. Unlike t

elation betwlation bet

t legal systemt legal system

ical; in manycal; in ma

epeat Playerepeat Player

ence, less finnce, less fin

g administratadministra

gard this ineard this i

Ufor ifor

PROO

F

me ofe

kept in minkept in

inistrative laistrative

ted to mediated to media

lished in theished i

its citizeits citi

m

administrative courts a more active role than its private law compeer and by not

allowing the parties to dispose of their rights or their obligations by the concurrence

of the wills.

19.4.2 Constraints Based on the Rule of Law, the Useof Discretionary Powers, and the Public Interest

Administrative law is concerned with the exercise of powers of a public law nature.

Such powers entrusted to various agents within the public administration are

essential for the discharge of the public tasks or duties assigned to these offices.

Related to the issue discussed in the previous paragraph is the constraint for ADR in

administrative proceedings that lies in the fact that decisions and actions of admini-

strative authorities must be to the benefit of the public interest based on the

competences awarded to it by the legislator and in conformity with the law. The

implications of the acceptance of the rule of law in the legal systems of the

European Union are important. Negotiating the settlement of an administrative

law dispute after the decision was taken by the administrative authority can only be

lawful if the authority is legally competent to amend its previous decision.19

Any exercise of power by an administrative authority is subject to boundaries.

The administrative authority does not have full discretion in exercising its powers.

Every decision relating to the exercise of powers under public law is bound by the

statutory rules governing the matter in question. Even when those rules imply that

the administrative authority has no discretion, the use of mediation or mediation

techniques might be useful. In that case, the authority must however limit itself to

explaining the situation or suggesting alternatives for the conflict that has risen.

Reviewing the decision will not solve the dispute. In other cases, the statutory rules

may also mean that the authority has a margin of discretion. Discretionary power

means that in response to an objection or appeal the administrative authority can

investigate whether using its discretionary power in a different way can lead to a

decision that is more in keeping with the interests of the interested parties. How-

ever, this discretion is always subject to certain restrictions. Even when the statu-

tory provisions offer administrative authorities discretion in the way that they are

able to decide on a particular issue like the application for a permit, the rule of law

demands that these discretionary powers are applied in a purpose-specific manner.

In any case, they should reflect the specific goal(s) that the legislator had in mind

when attributing the competence to the administrative authority, and the result of

the application of the competence should be to the benefit of the public interest. The

fact that the legislator attributes competences to administrative authorities with a

specific purpose (a specific general interest) in mind is a restriction of some

importance when negotiating in administrative proceedings. Any agreement that

19 Cf. De Graaf and Marseille (2007), pp. 81–98.


UNCO

RREC

TED

nd in cd in

of law inof law in

g the settlemg the settle

y the adminisy the admini

ent to amendent to amen

nistrative aunistrative au

ot have full dt have fu

cise of powecise of powe

tter in questiter in que

as no discretas no discret

In that case,n that case

suggestingsuggesting

will not solvewill not solve

e authority hauthority h

se to an objese to an ob

using its diusing its di

more in keepire in k

tion is alwaytion is alwa

s offer admioffer adm

de on a particde on a partic

hat these dishat these

ase, they shoase, they sh

attributing thtributing th

pplication ofpplication o

t that the let that the

pecific purpfic purp

importancemportance

PROO

F

Usesenterestterest

rs of a publics of a public

public admipublic adm

es assigned ts assigned t

ph is the consph is the con

decisions anddecision

public inpublic

orm

entails an obligation for a citizen or administrative authority that has no basis in any

statute or is seen as irrelevant to the use of the discretionary power that has led to the

conflict in the first place has to be considered at odds with the rule of law. It is not

unthinkable that any of the parties to such an agreement will claim that concluding

the settlement to the dispute constitutes abuse of power by the administrative

authority (detournement de pouvoir) and that it therefore could not be bound by it.

The consequence of this is that the possibilities for government authorities to

modify the contested administrative decision in order to reach or carry out an

agreement are sometimes limited.

19.4.3 The Relevance of the Interests of Third Parties

Another constraint for ADR in administrative proceedings that administrative law

scholars frequently put forward is the fact that many conflicts either involve or will,

in some way, influence the legal position of third parties that are not involved in the

proceedings. A dispute between the applicant of a building permit and the admini-

strative authority that refused the application cannot be solved entirely by reaching

an agreement that implies that the competent authority will retroactively accept the

application; any neighbor that was happy to hear the application was initially

denied will probably start administrative proceedings when information on the

change of position of the administration reaches him. To be certain that the use of

ADR could indeed lead to a binding resolution of the conflict, any interested third

party should be included in the (facilitated) negotiations. It is often these sort of

issues that bring up important questions of effectiveness, efficiency, and legitimacy

of the involvement of the administrative authority or the administrative court in

facilitating the settlement of a dispute in another manner than by judgment; it is

primarily the task of the administrative authority to take a decision that is both in

conformity with the law and reasonable. The answer lies of course in the general

interest of amicable dispute settlement in a civilized society, in the fact that a

judgment is seen as ultimum remedium and in the costs of adjudication in general.

Still, a relevant question remains. What time, costs, and efforts should administra-

tive courts or authorities invest in possible dispute resolution by way of mediation

or negotiation? This is a question that any legal system will have to answer, and the

answer will probably differ considerably in light of the cultural and historical

backgrounds of the legal system of a specific country.

19.4.4 Equal Treatment and the Fear of Precedent

Another substantive issue that is relevant when it comes to ADR in administrative

proceedings is the principle of equality as a principle of good governance. This

basic principle for any behavior of any administrative authority implies that all


UNCO

RREC

TED

many cy

ird parties thrd parties

nt of a buildint of a build

on cannot beon cannot be

etent authorittent authori

happy to heaappy to he

rative procerative proce

ration reacheration reach

ding resolutioing resolu

e (facilitatede (facilitated

t questions oquestions o

administrativdministrati

t of a disputt of a disput

e administrae administra

aw and reasaw and re

e dispute see dispute se

ass ultimum rultimum rquestion remquestion rem

authorities inuthorities

n? This is an? This is a

ll probablyll probabl

unds of the leds of the

9.4.4 Equ4.4 Eq

ther sther s

PROO

F

w. Itw.

t concludint conclu

administrativdministr

t be bound bt be bound b

ment authoritnt author

ach or carryach or carry

hird Partihird Pa

edings thaedings

ictsict

equal cases shall be treated equally and unequal cases shall be treated differently in

a way that reflects the differences between the cases on the basis of legally allowed

and objective reasons. We will not discuss this principle in depth here, but it is

obviously of influence when mediating or negotiating in administrative proceed-

ings. When an administrative authority is negotiating the way it shall exercise its

discretionary power, there is more at stake than the single use of the competence in

that particular instance. Any administrative authority is obliged to act and decide

systematically and consistently and treat equal cases equally. This will limit the

possibilities of an administrative authority negotiating on the use of a discretionary

power, as the use of the power in this one instance will have to be repeated when the

same conditions are met in another case. Successful application of any method of

ADR is only in order when an administrative authority is willing to change the way

it uses this particular competence in any similar case that the future might bring and

therefore is willing to change its policy for legitimate and objective reasons. In any

other situation, the result of ADR will be considered (unwanted) precedent for

future use of the competence. The principle of equality could therefore be consid-

ered a complicating factor when considering mediation in administrative

proceedings.20

19.4.5 Transparency

One of the key elements of mediation as an important form of ADR in admini-

strative proceedings is that the facilitated negotiations are confidential of nature.

Mediation is seen as a confidential process, and parties will usually have to agree to

this confidentiality when the process of mediation starts with the help of a (profes-

sional) mediator. Negotiations for the settlement of a conflict are deemed to be

more open, free, and informal when the parties involved don’t have to worry that

what they say, write, or bring to the table during the process will be used against

them in a later stage of the conflict. The EU Mediation Directive that is concerned

with cross-border civil and commercial disputes states in Article 7(1) that member

states shall ensure that, unless the parties agree otherwise, neither mediators nor

others involved in the mediation process shall be compelled to give evidence in

civil and commercial judicial proceedings or arbitration regarding information

arising out of or in connection with a mediation process, except where this is

necessary for overriding considerations of public policy of the Member State

concerned or where disclosure of the content of the agreement resulting from

mediation is necessary in order to implement or enforce that agreement.

It follows from the above that confidentiality is an important aspect of the

mediation process. In this respect, the nature of mediation and one of the basic

20 See Bondy and Mulcahy (2009), p. 34, as referred to in the chapter on the UK (Sect. 9.2.2).


UNCO

RREC

TED

equalq

ering medering me

diation as aniation as

e facilitatedfacilitated

ential procesential proces

e process ofprocess of

ations for thations for th

formal whenformal whe

or bring to tor bring

e of the conflof the confl

civil and comivil and co

ure that, unleure that, unl

d in the med in the m

ommercial jummercial ju

t of or in cof or in

y for overrifor overr

ned or whered or wher

ation is neceation is nec

It follows frIt follow

mediation proation pro

PROO

F

e, bue,

ive proceedive pro

all exercisel exerci

e competence competenc

to act and do act and

This will liThis will li

use of a discuse of a d

to be repeatebe repeat

lication of anlication of a

is willing tos willing to

hat the futurehat the futu

te and objectte and object

red (unwred (u

ouou

principles of administrative law seem in conflict with each other.21 Access to

information of the administration is to be seen as one of the most important

characteristics that will allow for public participation and contribute to the account-

ability and legitimacy of the functioning of the administration. Governmental

documents are an important source of information for citizens and will encourage

integrity, efficiency, and effectiveness in public administration. This is reflected in

the legislation in many of the EU member states and in several important inter-

national agreements and treaties.22 Seeking government transparency is a citizen’s

right and resolving administrative law disputes in a confidential manner might

infringe on that right. The chapter on administrative proceedings in the UK expli-

citly states on this aspect of mediation that it is important to recognize that good

administration may be best served by a visible dispute resolution mechanism that is

accountable to the rule of law.23

19.4.6 Prescribed Period for Administrative Proceedings

A last potential constraint that is of a more formal nature but could be of some

importance when a process of mediation starts in a conflict between an admini-

strative authority and interested parties is the fact that administrative proceedings

like internal administrative review (objection procedure) or an appeal procedure

will, in most cases, have to be initiated within a prescribed short period, and the

procedure itself has set time frames for getting to the end of the procedure within a

certain prescribed period of time.

In any case in which the administrative authority has taken a decision that has

lead to a conflict and ADR is a serious option for resolving it, one should understand

that attempting to resolve the conflict using an alternative process will probably not

suspend the statutory appeal period that applies for initiating the “normal” admini-

strative procedures. All parties must keep in mind that there is the possibility that

the appeal period, the period for treating the internal review, or the judicial review

procedure by the administrative court will expire. However, in many of the

discussed legal systems, the law will allow for suspension of time prescriptions

and other measures that allow administrative proceedings to accommodate (or not

oppose) the possibility that either long negotiation or mediation between the parties

could result in the amicable dispute resolution. The EU Mediation Directive,

although not applicable to administrative proceedings, stipulates in Article 8 that

member states shall ensure that parties who choose mediation in an attempt to settle

21 Cf. the chapter on the UK (Sect. 9.2.2).22 See the Council of Europe Convention on Access to Official Documents (Convention no. 205)

and Articles 4 and 5 of the UNECE Convention on Access to Information, Public Participation in

Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).23 Chapter on the UK (Sect. 9.2.2).


UNCO

RREC

TED

istrativeistrativ

ore formal nore formal n

on starts in an starts in

s is the facts is the fact

(objection probjection pr

tiated withintiated within

mes for gettines for gett

me.me

administrativadministrativ

s a serious opa serious op

the conflictthe conflict

ppeal periodppeal period

All parties mull parties

he period forhe period for

administraadministra

systems, thesystems, th

sures that alures that

possibility thossibility th

ult in the amlt in the

not applicaot applica

er states shallstates shal

UNCf. the chapte cha22 See the CoSee the Co

rticlerticle

PROO

F

he acce a

overnmentovernm

will encouraill encou

his is reflecteis is reflecte

al importantimportan

arency is a carency is a c

dential mannential ma

edings in thengs in th

nt to recognnt to recogn

esolution meesolution me

a dispute are not subsequently prevented from initiating judicial proceedings or

arbitration in relation to that dispute by the expiry of limitation or prescription

periods during the mediation process. Such a provision is all the more relevant

when mediation is used in administrative law disputes.

19.5 A Comparative Outlook

In this section, we will allow for a comparative analysis on the basis of the

information contained in the chapters on the national legal systems. The analysis

is designed to answer certain questions in a comparative manner. Is an admini-

strative authority allowed to resort to mediation in administrative law disputes, and

can a mediation agreement replace an administrative decision? What is the role of

mediation before or in administrative proceedings, and what is the relation between

the two? What is the substantive or procedural effect of successful mediation in

administrative proceedings? We will try to answer some of these questions on the

basis of the chapters on the national legal systems.

Quite a lot of countries have embraced the potential of mediation (by a third

party) and mediation techniques (by civil servants in their behavior to citizens) in

light of a service-oriented approach and the finding that this method could be to the

benefit of the quality of decision making, the settlement of administrative law

disputes, and the relationship between government and its citizens. The chapter

on the Dutch legal system stipulates that mediation techniques are deemed to be

part of the internal review procedure or administrative appeal. The Dutch ministry

of Interior and Kingdom Relations is indeed actively supporting and stimulating

administrative authorities that are willing to use the so-called Informal Pro-active

Approach Model for handling applications for internal review. The model basically

consists of a public servant ensuring quick and direct personal contact with the

citizen concerned (telephone call or informal meeting) and using communication

skills such as listening, summarizing, and questioning from an open, unbiased

approach and certain conflict management techniques that can lead to deescalation

and conflict resolution. The results—measured by the percentage of initiated

internal review procedures that were canceled after informal approach was

applied—are very positive.24 Where the Dutch policy seems to reinvest in (infor-

mal) objection procedures, in Austria and Germany the objection procedure is

becoming rare. The section on alternative dispute settlement in the chapter on

Austria discusses the possibility to revise a final administrative decision by way

of petition (art. 68 Allgemeines Verwaltungsverfahrensgesetz). Although the formal

objection procedure was almost completely removed from the Austrian admini-

strative system of adjudication, the chapter also refers to the potential importance of

the possibility of the administrative authority to voluntarily amend, change, or

24 See www.prettigcontactmetdeoverheid.nl (“pleasant contact with the government”).


UNCO

RREC

TED

l effe

nswer someswer som

ystems.ystems

d the potentd the potent

il servants inl servants i

d the findingd the finding

making, themaking, the

ween governween govern

lates that meates that m

edure or admedure or adm

lations is indlations is in

hat are willinat are willi

dling applicatling applica

rvant ensurinrvant ensuri

ephone callephone c

ning, summaning, summa

ain conflict min conflict m

solution. Thsolution. Th

w procedurw procedu

e very positivvery positi

ction procedtion proce

g rare. Therare. The

a discusses tdiscusses t

tition (art. 68tition (art. 6

ection proceection pr

trative systemve system

the possibilhe possibi

PROO

F

re rere

sis on the bon the b

gal systems.gal systems.

tive mannerive manner

ministrativeministrative

ve decision?e decision?

nd what isnd wha

f suf s

retract the contested decision in light of objections against it [art. 14

(1) Verwaltungsgerichtsverfahrensgesetz]. Without explicit provisions on the mat-

ter, the same development seems a fortiori present in German public admini-

stration. The extensive abolishment of the objection procedure by the German

L€ander has led to a variety of informal actions by administrative authorities to

avoid unnecessary procedures before the administrative courts. Administrative

authorities actually invite affected parties to make use of the right of petition to

open informal communications on the contested decision. Even the decision itself

may be accompanied by openings for informal communication to avoid affected

parties going to court; in many cases, the administration is able to clarify inconsi-

stencies and resolve the potential dispute. The administration has proven very

resourceful in setting up complaint management systems that will allow for an

informal approach and possible solution to the conflict before an appeal is lodged

with the administrative court.25 In the UK, the policy on “Transforming Public

Services” certainly seems to have the same goal in mind. It strives to develop a

range of policies and services that will, as far as possible, help people to avoid legal

disputes in the first place and provide tailored solutions where they cannot.26

There seem to be no countries in which there is an explicit provision that

prohibits administrative authorities to resort to mediation or mediation techniques

for either the improvement of the quality of decision making or the settlement of

administrative law disputes. A number of authors do however point out that public

law is substantively at odds with the concept of negotiated settlement. As an

example, we could refer to the legislation on settlement in Belgium. The provision

on the possibility of settlement during court proceedings states that “any dispute

that is susceptible to be controlled via a settlement, may be the subject of a

mediation” (art. 1724 Gerechtelijk Wetboek). The article continues: “The legal

persons governed by public law can be a party to mediation in cases established

by law or by Royal Decree.” This is an explicit reference to the fact that all national

legal systems will allow settlements only on those subjects where the law allows the

parties to dispose of the rights and duties involved; parties will generally not have at

their disposal those rights and duties that are part of administrative law.27 If we also

consider that the core guiding principle of all decisions of administrative authorities

shall be to the benefit of a specific general interest, the conclusion should be that

there is not much room for a legal compromise in administrative proceedings.

Practically, all chapters on the national legal system emphasize this particular

point. Nevertheless, it follows from the aforementioned developments in The

Netherlands, Austria, Germany, and several other countries that mediation,

25 See the chapter on Germany (Sect. 1.2.5.3).26 Cf. the chapter on the UK (Sect. 9.1) and “Transforming Public Services: Complaints, Redress

and Tribunals,” accessible at www.dca.gov.uk. The most significant references in judgments to

ADR in public law are R (C) v Nottingham City Council [2010] EWCA Civ 790 and Cowl vPlymouth City Council [2001] EWCA Civ 1935.27 Also see the chapter on Romania (Sect. 14.5), specifically art. 46 of the Law on mediation

(no. 192/2006). Also see the chapter on Serbia (Sect. 15.4).


UNCO

RREC

TED

possib

solutions wsolution

ch there isch there is

ort to mediatort to mediat

y of decisioy of decisio

of authors dof authors d

the conceptthe concept

slation on seslation on se

during courturing cou

rolled via arolled via a

chtelijk Wetbhtelijk Wetbc law can belaw can be

e.” This is ane.” This is an

settlementssettlements

he rights ande rights a

rights and durights and du

ore guiding pre guiding p

benefit of a sbenefit of a

much room fuch room

all chaptersall chapters

vertheless, itertheless,

nds, Austriads, Austr

Ne the chaptere the chapter

Cf. the chaptef. the chapte

and Tribunals,and Tribunal

DR in pubDR in pub

uth Cuth C

PROO

F

ic adic

the Germathe Ge

authoritiesauthoriti

AdministraAdministra

ight of petitht of peti

n the decision the decisio

tion to avoidion to av

able to clarble to clar

stration hasstration has

ems that wiems that wi

ct before anct before a

olicy on “Trolicy on “Tr

mind. Itmind

helhel

mediation techniques, and informal communication could mean a significant effect

in the number of court proceedings that are avoided.

Several European countries have introduced legislation or soft law specifically

tailored to mediation. In the UK, Article 3.1 of the Pre-Action Protocol for Judicial

Review states that the disputants should consider whether some form of ADR

would be more suitable than litigation and, if so, endeavor to agree which form to

adopt. Both parties may be required by the court to provide evidence that alternative

means of resolving their dispute were considered for litigation should be a last

resort and claims should not be issued prematurely when a settlement is still

actively being explored. Parties are warned that if the protocol is not followed,

the court must have regard to such conduct when determining costs. Although these

incentives for parties to resort to ADR are potentially strong, the preaction protocol

also refers to the obligation that judicial review must be filed promptly and, in any

event, not later than 3 months after the grounds to make the claim first arose and

furthermore states that no one shall be forced to use ADR (art. 3.4).28

In July 2012, the German legislator implemented the EU Mediation Directive

and adopted the so-called Act to Promote Mediation and Other Methods of Out-of-

court Dispute Resolution.29 While the EU Directive is applicable to cross-border

commercial disputes only, the implementation does not distinguish between cross-

border and domestic disputes and is also concerned with mediation in public law

matters. Paragraph 173 Verwaltungsgerichtsordnung (hereafter VwGO) was

amended in such a way that the administrative courts are allowed to propose the

parties to resort to mediation and suspend proceedings for as long as the mediations

last (paragraph 278a VwGO) but may also direct the disputants to a so-called

G€uterichter, who is not competent to decide in the legal dispute by judgment but

can resort to mediation and all other possible methods of dispute resolution

[paragraph 278(5) VwGO]. The question on whether or not to include a separate

concept of in-trial mediation along with out-of-court mediation was a major

controversial issue. Whereas the draft bill originally proposed by the German

government provided for such a concept, it was adopted in a modified manner.

Instead of being an independent concept in the legislative act, it is now mentioned

as one of the potential methods for judicial conciliatory proceedings.

The new civil procedural code that was introduced In Romania in 2012 demands

the courts to organize a pretrial session to inform the parties about the possibilities

of mediation and recommend its use; court proceedings are only allowed to

continue if parties have refused mediation. A specific legislative act on mediation

with a similar goal was already adopted in Romania in 2006.30 According to this

law, mediation may commence either at the initiative of parties or at the recom-

mendation of the judge when the parties consent to that recommendation; court

28 The Pre-Action Protocol for Judicial Review is accessible at http://www.justice.gov.uk/courts.29 See BGBl. 2012 I, 1577 (Gesetz zur Forderung der Mediation und anderer Verfahren der

außergerichtlichen Konfliktbeilegung).30 Also see the chapter on Serbia (Sect. 15.4), specifically the Mediation Act (no. 18/2005).


UNCO

RREC

TED

ented

diation anddiation an

Directive isDirective is

ation does notion does no

o concernedo concerned

sgerichtsordsgerichtsordministrative cministrative

uspend proceuspend proce

ut may alsot may al

tent to decidtent to deci

d all otherd all other

. The questioThe questi

ation alongation along

hereas the dhereas the d

for such afor such

independentindependent

ntial methodtial method

l procedurall procedural

rganize a preganize a p

n and recomand recom

f parties havparties ha

milar goal wilar goal

ediation madiation ma

dation of thedation of th

U2828 The Pre-AcThe Pre-A

BGBBGB

PROO

F

pecipe

l for Judicil for Jud

form of ADorm of

e which forme which form

nce that alterne that alte

on should bon should b

n a settlemea settlem

otocol is noocol is no

ning costs. Aning costs. A

rong, the preong, the pre

be filed prombe filed pr

make the clmake the cl

ADR (artADR

EUE

proceedings will be suspended as long as a settlement is negotiated with the help of

a mediator. Mediation can only be allowed in disputes where the object of the

mediation is not against the provisions of the law or against the public order.

Although there are some clear incentives for the court to stimulate mediation as a

form of ADR, there still seem to be some important questions on the general issue

of allowing administrative authorities to negotiate the application of public law

competences that should always be applied to the benefit of the general interest.

A successful mediation process will start and end with a contract between the

disputants. The agreement that is intended to end the dispute can be qualified as a

public law contract in any legal system, but not every system of administrative law

will allow the administrative authority to amend the legal position of a person or

good by way of a contract. This brings us to the question of the effects of the

agreement in administrative proceedings. Some legal systems that are discussed in

the national chapters have explicit provisions on such contracts, and the authors

refer to those provisions.31 Although we could imagine that it is relevant for the

development of mediation in administrative law that the agreement shall have a

direct binding effect on the legal position of the private party involved in the

mediation, this doesn’t seem the case in practice. The chapter on German admin-

istrative law stipulates that a formal contract is only more likely to be concluded

when the resolution of the dispute has a third-party effect. In other cases, the

willingness of the administrative authority to compromise or settle the dispute

will most likely lead to the informal agreement that the administrative authority

will either withdraw or change the contested decision. This possibility of the

administrative authority to take a new decision that it knows the private party

will agree with seems to be the predominant legal effect of a successful mediation

in administrative proceedings. During the internal review procedure, such an

informal agreement could lead to a decision on the application for internal review

that will be accepted by all parties,32 or—when the agreements mean that the

contested decision should remain as it is—the application for internal review

could be withdrawn. If mediation is successful during court proceedings, the appeal

could of course also be withdrawn.33 However, if the agreement entails the obli-

gation of the administrative authority to take another decision, it could be wise to

wait for the new decision. In most of the legal systems, the procedural provisions

will allow for the pending appeal to be extended to encompass the new decision as

well; in that case, the appeal against the new decision—that all parties now accept

as the outcome of the mediation—will be deemed inadmissable because the interest

needed to bring the case to court is lacking since the applicant has accepted that

31 See, e.g., the chapters on German and Spanish laws.32 See the chapter on Hungary (Sect. 10.4).33 To our knowledge, the German Verwaltungsgerichtsordnung allows to formally end the appeal

by concluding a so-called Prozessvergleich (paragraph 106 VwGO, a contract to end an appeal in

court) that will have a Doppelnatur. It regulates both the intended substantive legal issues and the

intended procedural effect, namely the end of the appeal. We are not aware of any other legal

system that has provisions on this specific kind of contract.


UNCO

RREC

TED

w tha

of the privaf the pri

actice. The cactice. The

ract is only mract is only m

s a third-para third-pa

hority to cohority to co

al agreementl agreement

he contestedhe conteste

a new decia new de

predominanpredominan

gs. During tgs. During

ead to a decad to a dec

all parties,all parties,3

uld remainuld remain

f mediation if mediatio

o be withdrabe withdra

inistrative aunistrative au

w decision. Inw decision. I

the pendinghe pendin

case, the appcase, the ap

ome of the mome of the

o bring the cbring the

Ne, e.g., the chae, e.g., the c

See the chaptee the chapt3 To our knowTo our kno

concludinconcludin

hath

PROO

F

blicbli

ediation asediation

e general issugeneral

n of publicn of public

general intereneral inte

ontract betwontract betw

e can be quacan be qu

m of adminiof admini

al position oal position o

estion of thestion of the

systems thasystems th

uch contracuch contrac

gine thatgine th

e ae a

specific decision in the mediation procedure. If the agreement covers all aspects of

the dispute, including costs, and the administrative authority has indeed satisfied all

obligations that were agreed upon, the appeal could be withdrawn safely by the

applicant.34

19.6 Concluding Remarks

Mediation is on the rise as an important form of ADR in administrative law.

Although all forms of administrative proceedings could potentially benefit from

the positive influence of mediation on the relationship between disputants (admin-

istrative authorities and private actors), there seems to be an emphasis on the

exploration of the possibilities of mediation in those disputes that are not yet

brought before administrative courts. Most legal systems that are discussed in this

book actually have growing policies to implement mediation, mediation tech-

niques, and communication skills within all processes that demand civil servants

of governmental agencies to interact with private parties. When public law deci-

sions are at the basis of the conflict, the structure and core aspects of administrative

law will have an important role in deciding whether mediation could have a role in

resolving the dispute.

There are a number of reasons for doubting the potential positive effects of

mediation in administrative proceedings; the unequal relationship between admini-

strative authorities and private parties in legal issues and, in fact, the predominance

of the rule of law, the principle that governmental powers shall be applied consi-

stently in a purpose-specific manner and to the benefit of the general interest, the

access to information that allows for transparency, for public participation and will

contribute to the accountability and legitimacy of the functioning of the

administration. Nonetheless, it seems important to recognize that mediation could

also be relevant in administrative court proceedings and that it is of eminent

importance to remove obstacles that would impede on that potential. This means

that the procedural rules should facilitate, accommodate, and allow for amicable

settlement of administrative law disputes by using mediation (techniques). Some

relevant issues have come up in this chapter. First, it could be of some importance to

inform parties of mediation. Second, the procedural provisions could—if neces-

sary—be amended in such a way that administrative proceedings will be suspended

for the time an amicable solution is under serious negotiation. Third, when an

agreement is concluded, it should be clear to parties what legal effect such an

agreement has on the pending administrative proceedings. These are all procedural

issues that need clarification in several legal systems. Furthermore, it could be

beneficial to the mediation process when a legal system would make clear whether,

34 See, on this issue, the chapter on the Netherlands (Sect. 4.4) and Romania (Sect. 14.5).


UNCO

RREC

TED

ement

processes thprocesses

private partieprivate part

ucture and coucture and c

ng whether mng whether

for doubtingfor doubting

dings; the undings; the un

arties in legalrties in leg

e that governe that gover

manner andmanner and

llows for tralows for tra

untability anuntability a

eless, it seemeless, it seem

administrativdministra

ve obstaclesve obstacles

al rules shourules shou

dministrativedministrativ

have come uhave com

es of medias of media

mended in sumended in

ime an amime an am

ment is concent is conc

ement has onment has o

ues that neeues that n

eneficial to tficial to t

PROO

F

fely bely

in administadminis

d potentiallypotentially

between dispbetween disp

s to be ans to be an

hose disputehose dispute

tems thattems t

ediaedi

and to what extent, confidentiality of the (facilitated) negotiations could legally be

guaranteed.

Any expert in administrative law will agree that negotiating the rights and duties

between administrative authority and private actors is a challenging task when there

is a discretionary competence of the administrative authority. Even if there is room

to negotiate, there are numerous substantive criteria to be met. There is a risk that

either administrative authorities will allow more than what a private actor is entitled

to according to law or that the private actor agrees to receive less than the law would

give. It is in that respect that we feel that any legal system that allows mediation and

negotiation in administrative law disputes to lead to compromise will have to

recognize that such a system would also benefit from a stable, robust, and easily

accessible system of judicial review.

References

Bondy V, Mulcahy L (2009) Mediation and judicial review: an empirical research study. The

Public Law Project. www.publiclawproject.org.uk

Galanter M (1974) Why the “Haves” come out ahead: speculations on the limits of legal change.

Law Soc Rev 9:95–160

Golann D (2009) Mediating legal disputes: effective strategies for neutrals and advocates. Amer-

ican Bar Association, Chicago, 370 pp

Goldberg SB et al (1985) Dispute resolution. Little Brown, New York, 594 pp

De Graaf KJ, Marseille AT (2007) Review of final decisions in the Netherlands, Germany and

Europe. In: De Graaf KJ, Jans JH, Marseille AT, de Ridder J (eds) Quality of decision-making

in public law. Studies in administrative decision-making in the Netherlands. Europa Law

Publishing, Groningen, pp 81–98

Hartel I (2005) Mediation im Verwaltungsrecht. Juristenzeitung 60:753–762

Hopt KJ, Steffek F (eds) (2013) Mediation: principles and regulation in comparative perspective.

Oxford University Press, Oxford, 1408 pp

Jans JH et al (eds) (2007) Europeanisation of public law. Europa Law Publishing, Groningen,

418 pp

Kovac P (2010) Mediation and settlement in administrative matters in Slovenia. Hrvatska javna

uprava (Croatian Publ Adm) 3:743–769

Marseille AT, De Graaf KJ. (2012) Criteria to assess the quality of the Dutch informal pro-active

approach model. In: Dragos DC, Lafarge F, Willemsen P (eds) Proceedings of the 33rd annual

EGPA-conference of the permanent study group: law and public administration. Editura

Economica, Bucharest, pp 126–143

de Palo G, Trevor MB (2012) EU mediation. Law and practice. Oxford University Press, Oxford,

656 pp

Pitschas R (2004) Mediation als Methode und Instrument der Konfliktmittlung im offentlichen

Sektor. Neue Zeitschrift fur Verwaltungsrecht 23:396–402

Tolsma HD (2007) How can mediation be implemented in the current administrative decision-

making process? In: de Graaf KJ et al (eds) Quality of decision-making in public law. Studies

in administrative decision-making in the Netherlands, Europa Law Publishing, Groningen,

pp 67–80

De Waard BWN (ed) (2000) Negotiated decision-making. BJU, The Hague, 246 pp


UNCO

RREC

TED al review: anl review: an

.uk.uk

ahead: speculathead: specula

ffective strategffective strateg

ion. Little Broon. Little Br

view of final dview of fin

Marseille AT,Marseille AT

nistrative decinistrative deci

–9898

erwaltungsrechrwaltungsrech

3) Mediation: p) Mediation: p

Oxford, 1408Oxford, 1408

EuropeanisatEuropean

tion and settletion and settle

Publ Adm) 3:7ubl Adm

Graaf KJ. (2012Graaf KJ. (20

el. In: Dragosel. In: Dragos

erence of thence of the

a, Bucharest, pa, Bucharest, p

Trevor MB (20revor MB

R (2004) MeR (2004) Me

ktor. Neue ZeiNeue Z

ma HD (2007)ma HD (2007

making procemaking proc

in administrdminist

pp 67–80pp 67–80

Waard BWaard B

PROO

F

andan

k when therk when

f there is roothere is

ere is a riskere is a risk

ate actor is ene actor is e

s than the laws than the law

allows medallows me

mpromise wromise w

stable, robustable, robu

605