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A retrospective review of 5 years of administrative mediation

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Five years after the Law on the Modernisation of Justice in the 21st century came into force, the administrative justice system is reviewing administrative mediation, a tool intended to appease tensions and facilitate the co-construction of solutions for the benefit of citizens Since 2017, 4,327 voluntary mediation procedures have been implemented by the administrative courts and administrative courts of appeal, half of which have concluded with an agreement. The mandatory prior mediation system, which was made permanent on 25 March 2022*, allowed settlements to be reached in 76% of the 4,364 prior mediation procedures conducted since the beginning of the trial period.

Almost 50 years ago, France appointed its first ombudsman, then known as the Mediator of the Republic, now the Defender of Rights, whose mission was to improve relations between citizens and the administrative authorities. Since then, amicable dispute resolution methods (DRMs) have diversified and the Law on the Modernisation of Justice in the 21st century authorised the use of administrative mediation, an alternative administrative dispute settlement method. Since 2017, it has been possible for either the parties or the administrative judge to initiate a so-called "voluntary" mediation procedure, with the appointment of an independent mediator. In 2018, a trial was organised on a procedure known as mandatory prior mediation (MPO) for certain types of disputes, to be undertaken before referring a matter to the administrative court. The MPO has now been made permanent.

Mediation, a tool for appeasing tensions for the benefit of citizens, successfully adopted by the administrative justice system

The development of digital administration, the complexity of certain rules of law and the multiplicity of administrative procedures can all be sources of disagreements between the administrative authorities and citizens. Although it is still possible to bring matters before an administrative court, some of these disagreements are due to misunderstandings or can be settled without the need for a court ruling. 

Mediation allows a dialogue to be established, mainly orally, in a settling that is less formal than a courtroom, with the aim of seeking a compromise acceptable to both sides; citizen and administration.

 "Mediation, whether voluntary or mandatory prior mediation, is effective and useful.  
The review of these first 5 years shows that, for citizens, mediation has proved to be an extra tool to reach a satisfactory solution to the problem between them and the administrative authority. A solution that would not necessarily have emerged from a judicial decision."
Sylvain Humbert, Deputy General Secretary of the Conseil d'État, responsible for the administrative courts

This process of co-construction of a solution can also be a way of preserving a lasting relationship between the parties, for example in the case of a civil servant involved in a dispute with the department they work for. When misunderstandings occur, mediation can also serve an educational purpose, leading the user to accept the administrative authority's decision and/or the latter to propose a more favourable solution.

Today the administrative courts are all committed to a proactive approach.  And the end of the public health crisis should see this trend amplified in the years to come.

"Judges and the court registry staff are very attentive to the conduct of mediation procedures. They do a lot of educational work with court users, involving the mediator in the management of cases, whilst respecting their independence. It is a genuine joint effort in the interests of all concerned."
Bernard Travier
Honorary judge, mediator at the Administrative Court of Montpellier

Voluntary mediation

Since 2017, 4,327 voluntary mediation proceedings with an agreement reached in half of the cases

The administrative justice system is fully committed to the mediation process, and the number of procedures undertaken is increasing every year. In spite of the difficulties due to the public health crisis in the last two years, 4,327 mediation procedures have been conducted since 2017, with an agreement being found in half of those cases.

4 327 mediations in five years

 

2021: 1,852 voluntary mediation procedures, 54% with agreements signed

In 2021, 1,852 mediation procedures were conducted within the administrative courts, mainly at the judge's request. 54% of those procedures concluded with an agreement.

The mediation procedures undertaken concern three areas:  
•    Civil servants and public employees: 385
•    Employment (Pôle Emploi): 373
•    Urban/spatial planning: 259

Mandatory prior mediation

The mandatory prior mediation (MPO) trial is a resounding success, with agreements in 76% of cases 

The obligation to attempt mediation before bringing proceedings before the court, was the subject of a trial that ran from 2018 to 2021, covering a certain number of types of disputes (public service, social disputes, housing) in certain parts of the country.

The trial, which was coordinated by the Conseil d'État, led to the conclusion of 4,364 prior mediation procedures, of which 76% ended in an agreement before the matter reached the court stage. The system proved to be particularly effective in disputes relating to the national employment agency, Pôle Emploi, with 98% of the 2,644 cases where the mediation process was completed ending in an agreement.

Following the recommendations made by the Conseil d'État following its evaluation of the trial, the mandatory prior mediation (MPO) system has now become permanent (see Decree No. 2022-433 of 25 March 2022). MPO applies to all individual decisions unfavourable to employees of the Ministry of Education and all local government workers, the system being operated in conjunction with the 97 public service management centres. MPO also concerns all individual decisions made by Pôle Emploi.

On the other hand, MPO was abandoned for social disputes (minimum income benefit, housing benefit and the like) and those relating to public employees working for the Ministry of Europe and Foreign Affairs, as the trial showed that it was not relevant in these contexts.  However, the possibility of mediation being undertaken at the initiative of the judge, or the parties remains in these fields.

"Although mediation is possible at any stage in a dispute, it is by nature more timely and more effective when it is employed in incipient or emerging disputes. By devoting real space-time to mediation between the inception of the dispute and the bringing of legal proceedings, MPO raises hopes that disputes can be kept out of the courts and that social relationships within and with the administrative and local authorities concerned can be strengthened."
Amaury Lenoir
National Delegate for Mediation for the administrative courts

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* : 25 march 2022's decree No. 2022-433