MEDIATION WITH PUBLIC ADMINISTRATIONS CAN YOU MEDIATE WITH AN ADMINISTRATION?

In the last months I have informed you about  the benefits and advantages of Mediation as a tool for conflict resolution and an effective technique to avoid the judicial collapse that is expected on the occasion of COVID-19.

Most citizens know about Family Mediation to resolve family issues, divorces, custody, etc., but many of them wonder, Can you mediate with the Tax Authorities? Can we request mediation from a Town-Hall on the occasion of an urban development problem, or an administrative license?

It is known to all that when you face a problem before an Administration it is almost impossible for you to agree with in the first means, that is, the administrative means, forcing you most of the time to go to the Administrative Contentious Via before the corresponding Courts. This administrative contentious way is going to suppose that, apart from the judicial costs and legal expenses to which you must necessarily attend, it will suppose a waste of time that can last sometimes, years; as well as an uncertain result in most cases. All this without forgetting the possible sentence in costs to which you will have to respond in case you do not obtain a favourable sentence. This means that most of the time citizens choose not to continue with our claims before an unfavourable resolution in administrative proceedings.

However, what a large part of the citizenship is unaware of is that there is a tool for conflict resolution before Administrations, which is the administrative mediation, a tool that is not widely used, unfortunately, by legal professionals. Administrative mediation tries to create a completely different relationship between the Administration and the Citizen through a proposal for mediation to resolve a conflict through communication, dialogue and satisfactory solutions for the parties involved.

But it is also that the administrative mediation can be used as a form of conflict prevention between the administration and society. This tool is already being used in conflict resolution in Europe, operating successfully for years; It also has the advantage of promoting the autonomy of the Administrations when it comes to resolving conflicts with citizens without the need to collapse the Administration of Justice; It reduces the legal costs for the citizens, as well as for the public treasury itself, by avoiding the Administration paying costs; In short, administrative mediation is one of the most optimal and effective tools for conflict resolution, avoiding long and tedious administrative procedures and replacing them with short and cheap procedures.

How is administrative mediation regulated in our Law?

As of today there is no specific Legislation on Administrative Mediation.

It must be remembered that the Law 5/2012, of the 6^th of July, on mediation in civil and commercial matters, expressly excludes in its article 2.2, referring to the scope of application, mediation with public Administrations.

Much has been said about the specific regulation that is intended to be implemented and that will regulate Mediation with public administrations. It is important that the referred norm expresses in a clear and solid way the concept and spirit of mediation, its legal regime, nature and scope of application. Likewise, it must cover both administrative procedures and administrative litigation to be truly effective. Let us hope that those in charge of preparing the long-awaited norm have a broad outlook and achieve a norm that definitively transforms relations between the Administration and citizens.

However, administrative mediation has been collected for years in the famous  law 30/1992 of the 26^th of November of the Legal Regime of Public Administrations and Common Administrative Procedure (Articles 88.1 and 107.2), Law 39/2015 of the Common Administrative procedure (Article 86 and 112.2)

Thus, the article 86 of Law 39/2015 establishes the conventional termination of the administrative procedure through agreements that are not contrary to the legal system, nor do they deal with matters subject to compromise. For its part, the article 112.2 of Law 39/2015 refers to the substitute mediation of the appeals and petitions.

On the other hand, article 77.1 of Law 29/98 of the 13^th of July regulating Administrative Litigation Jurisdiction regulates contentious-administrative mediation. Our Courts equally have recognized this possibility when reaching agreements that end the controversy in certain matters.

For all this and as you can see, mediation with public Administrations, despite being excluded from the scope of application of Law 5/2012 on Civil and Commercial Mediation, is provided for in our legal system and it is a perfectly valid conflict resolution system, of which, unfortunately, we make little or no use by legal operators.

For all this and from here I encourage citizens with problems with any kind of public administration to go to legal professionals and request information on the possibility of mediating with public administrations those issues that are stalled, thus avoiding prosecuting conflicts and restoring the relations between Administration and Citizens and helping the culture of mediation to be implanted in our society in the face of the culture of confrontation and litigation that is so ineffective.

At MAR Consultores Lawyers we can help you in the mediation of any matter. Call us and request information at no cost. María José Arroyo – Lawyer and Mediator.