In memoriam to Carlos de los Santos, admired lawyer, arbitrator and also mediator, who passed away prematurely.
I was very interested in the well-prepared questionnaire that María Avilés Navarro, Lawyer of the Administration of Justice and Doctor in Procedural Law, published under the title “Mediation with the Public Administrations” in the recent issue 09 of “La Ley. Mediation and Arbitration”, published by Wolters Kluver, under the direction of Professor José Carlos Fernandez Rozas.
Twelve senior officials from different administrations, all prominent jurists, respond to the ten questions posed, and the reader will undoubtedly appreciate their clarity of exposition and their varied personal approaches. I will focus first on question no. 2: Do you think mediation is possible in conflicts with the Administration of Justice, in administrative proceedings, and even when the conflict has been brought before the courts?
The replies are all positive, to a greater or lesser degree. A “of course” from the ‘Mayor of Madrid’; a “more than possible” from the ‘Secretary of State for Justice’; a “not only possible but positive and necessary” from the ‘Minister of Justice of the Community of Madrid’; a “yes, both in the administrative procedure and in the judicial process” from the ‘President of the Chamber for Contentious-Administrative Proceedings of the TSJM’; a “yes, it is, and proof of this is its successful use in other countries” from the Chief Public Prosecutor in the Autonomous Community of Madrid’; a “possible and necessary in ordinary relations between citizens and the Administration as a prior step to the administrative act, and in the reactive judicial sphere” from the ‘Head of the Office of the Ombudsman’, and a “yes, of course, it is possible and would be very favourable”, from the ‘Territorial Representative of ONCE.’
Logically, within this absolute consensus, there were nuances, such as from the ‘Manager of the Mutualidad General Judicial’, “the general interest must always be safeguarded and any solution must respect this principle”; from the ‘Secretary of Government of the TSJ of Madrid’, “it is more complicated because the Administrations have as their objective the defence of the public interest and there is less availability“; from the ‘Dean of the Bar Association of Madrid’, “yes, I think it is possible, but the first thing that has to be overcome is the inequality between the parties”; from the ‘Secretary-General of the Madrid Health Service’, “the contentious administrative jurisdiction has its own singularities that differentiate it from the civil and criminal jurisdictions”. But there were also substantial additions such as that of the ‘Dean of the ICAM’, recalling “the experience in this respect carried out in Madrid in collaboration with the High Court of Justice, which has made it a reality”.
In the face of such enthusiasm, which I certainly share, we are all aware of the resistance we lawyers encounter in public administrations when we try to resolve a conflict through mediation in order to avoid going to court. I wrote in the blog “Hay Derecho”, on 18 February 2021, after my frustrating experiences with different Ministries, that “civil servants and senior officials who make decisions during the administrative process are still mostly anchored in old positions of ‘stick to your guns’, forcing the administration to go to the saturated contentious-administrative courts”, going on to propose that “the different public administrations create mediation units for this purpose, as is already the rule in other countries. They could count on the invaluable legal assistance of the State’s own lawyers”.
I now come to question no. 4, “Do you consider it necessary to have a specific law that expressly and in detail regulates mediation in this judicial order? The answers are also very favourable, consistent with our legal reality. The provisions of Article 77.1 of the Law on Contentious-Administrative Jurisdiction, “the Judge or Court may submit to the consideration of the parties the possibility of reaching an agreement that puts an end to the controversy”, has always been considered insufficient.
José Luis Martínez-Almeida argues in favour of “this express regulation that clearly contemplates which are the cases in which their matters can be submitted to mediation, in what way, with what margin of appreciation, who will be the competent bodies, etc.”. Sebastián Lastra Liendo suggests that “in the meantime, in the short term, some express mention should be introduced in the LJCA establishing the bases by which such mediation should be governed”. Pablo Zapatero Miguel stresses that “this law is a provision that is specifically contained in the Preliminary Draft Bill on Procedural Efficiency Measures for the Public Justice Service”, something that Jose María Alonso Puig also recalls when defending that “the path initiated in the Preliminary Draft regarding a regulation in the administrative sphere and in the contentious-administrative jurisdictional order requires its own and differentiated legislative instrument”. The need for this ad hoc legislation is linked by Gabriel Maria de Diego Quevedo “to the fact that Law 5/2012/ refers exclusively to civil and commercial mediation”.
Having said the above, it should be recalled that Article 2.2 letter c) of “Law 5/2012 on Mediation in Civil and Commercial Matters”, ‘Mediation with the Public Administrations is excluded, in any case, from the scope of application of this Law’, something which, in any case, should be complemented with the paragraph contained at the end of section II of its ‘Preamble‘, – which, given its rich content, would have been better called ‘Explanatory Memorandum’ -, ‘The exclusions provided for in this law are not intended to limit mediation in the areas to which they refer, but to reserve their regulation to the corresponding sectoral rules’.
Unfortunately, in none of the excluded areas mentioned in Art. 2.2, apart from mediation with public administrations, such as criminal, labour and consumer law, have there been definitive regulatory developments, although there have been practical advances that it is not our task to analyse.
The aforementioned “Preliminary Draft Law on Procedural Efficiency Measures for the Public Justice Service”, approved by the Council of Ministers on 15-12-2020, – which is currently before the Council of State for an Opinion -, maintains in Section II of its ambitious Explanatory Memorandum, a similar exclusion of ‘administrative mediation’ in even broader terms, adding “[…] this pending the future regulation of these same appropriate means of dispute resolution in the administrative sphere and in the contentious-administrative order, which requires its own, differentiated legislative instrument”.
Unfortunately, the regulatory vacuum experienced since 2012 until today does not allow us to be optimistic about the fulfilment of this reiterated objective of legislation on administrative mediation. This leads me to refer to another alternative followed by France, whose “Loi nº2016-1547 du 18 novembre 2016 de modernisation de la justice du XXI siècle” must have influenced the reform underway in Spain.
The complex French text, of similar extensive dimensions to our Preliminary Draft, contains a brief Title II, “Favoriser les modes alternatifs de règlement des différends“, with the following legal mandate in its article 5, ‘Lorsque le Conseil d’Etat est saisi d’un litige en premier et dernier ressort, il peut, après avoir obtenu l’accord des parties, ordonner un médiation pour tenter de parvenir a un accord entre celles-ci selon les modalités prévues dans l’ordonnance nº 2011-1540 du 16 novembre 2011 portant transposition de la Directive 2008/52/CE du Parlememt européen et du Conseil du 21 mai 2008′.
It is true that what is transcribed refers to what we know as “intra-judicial mediation”, but the aforementioned Law also provides for “extra-judicial mediation”. Article 4 in fact determines that “A peine d’irrecevabilité que le juge peut prononcer d’office, la saisine du tribunal d’instance par déclaration au greffe doit être précédée d’une tentative de conciliation menée par un conciliateur.
To be able to study for Spain brief regulations in a similar sense, – we are still in the governmental and hopefully soon parliamentary process -, would place this appropriate method of dispute resolution, to use the new terminology, in the place that all the experts surveyed, and referred to at the beginning of this text, want as an indispensable complement to improve the efficiency of Justice in Spain. Certainly, this would not prevent the need for further regulatory measures to be taken after this express recognition of “administrative mediation”.
In support of this French formula, which introduced mediation in the contentious-administrative jurisdiction of our neighbours with recognised success, there could also be experts who defend the intrinsic unity of the figure of mediation, regardless of the legal area in which it manifests itself.
Along these lines, I will reproduce the “Reflexiones Sobre la Ley de Mediación 5/2012, de 6 de julio”, published in the same issue 09 of the “Ley. Mediation and Arbitration”, authored by José Fernando Merino Merchán, Legal Advisor to the Council of State and the Spanish Parliament.
After stressing that “mediation is an institution in itself, indivisible, which enjoys its own legal autonomy”, and criticising “the current regulatory dispersion, both territorial and sectorial, which does not favour the development of this means of conflict resolution”, he rightly concludes, in my humble opinion, that “the legislator should be asked to make a single and uniform treatment of mediation, that is, to include mediation in a single regulatory ‘corpus’, without excluding its different variants. Mediation is mediation and is configured with its own profile, with a specific purpose, and an object and procedure that is common to all its variants, be they labour, criminal or administrative”.
They seem to me, and I will end on this note, to be coherent with both the “Justice of the 21st Century” advocated by the French law and the “Justice as a Public Service” announced in the Spanish draft bill.
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