Mediation, ADR, Administrative Law, and Procedural Law

From the current state of legal doctrine and case law, we can conclude that, having moved past earlier conceptions that excluded the possibility of resorting to mediation in disputes involving public administration, it is now widely accepted that mediation can serve as a highly suitable dispute resolution method to foster dialogue and citizen participation, grounded in a public law perspective more focused on human dignity and less on the unilateral exercise of administrative powers.

For this reason, the majority of authoritative doctrine has consistently affirmed the need to adopt a systematic regulation of mediation in administrative law. This would involve a legal framework governing mediation both within administrative procedure itself (extrajudicial) and in subsequent contentious-administrative judicial proceedings (intrajudicial), thereby providing the application of this institution with greater legal certainty.

Indeed, during the passage of Law 5/2012, of July 6, on Mediation in Civil and Commercial Matters, an amendment was proposed to Article 77 of the Law Regulating the Contentious-Administrative Jurisdiction in order to expressly incorporate mediation as a mode of terminating contentious-administrative proceedings. However, this provision was not included in the statute, as it was deemed more appropriate to enact specific legislation on mediation within the sphere of administrative law, given the particular nature of the subject matter.

In this regard, the Council of State, in its Opinion 2222/2010 of February 17, 2011, on the Draft Bill regulating mediation in civil and commercial matters, considered that “a decision as significant as extending mediation to that sphere would require endowing this mechanism with substantive regulation, such as that provided in the Draft Bill for mediation in civil and commercial matters.”

Specifically, the high consultative body stated that:

“When undertaking such regulation, the marked specificities that the administrative sphere presents in relation to the civil and commercial spheres must be weighed. Thus, it must be recalled that the latter is governed, as a general rule, by the principle of party autonomy, which permits not only creating, modifying, or extinguishing substantive private legal relations, but also affecting the substantive scope in that the parties may freely decide how to resolve—through judicial avenues or alternative dispute resolution mechanisms such as mediation or arbitration—disputes they may have over their own private interests. It is clear that this principle of free disposition—both over the substantive right at stake and the jurisdictional right—is far more restricted in the public sphere, as reflected in the amendments that the Draft Bill proposes to introduce into the Law on Contentious-Administrative Jurisdiction.

Along the same lines, it must be borne in mind that, where the possibility of reaching conventional solutions has been introduced into our legal system, these have been surrounded by ad hoc regulations, which also appears to be the path forward regarding the establishment of mediation.

Precisely for this reason, prior to addressing procedural regulation of mediation in administrative matters, it is necessary to clarify and define the substantive scope of disposable rights within which mediation is feasible in this sphere.

All of this suggests that the potential regulation of mediation in the administrative sphere should be the subject of a regulatory initiative distinct from the statute governing mediation in civil and commercial matters; it is therefore suggested that the second final provision of the Draft Bill be deleted.”

The Explanatory Memorandum of Organic Law 1/2025, of January 2, on efficiency measures for the Public Justice Service, states that excluded from the scope of the Act are “matters of any nature in which one of the parties is an entity belonging to the public sector, pending the future regulation of these same appropriate dispute resolution mechanisms within the administrative sphere and the contentious-administrative jurisdiction, which requires a dedicated and differentiated legislative instrument. Indeed, the general interest underpinning the intervention of all public sector entities, as well as the public nature of the funding supporting their operations, strict adherence to the principle of legality pursuant to Article 103 of the Constitution, and the power of declaratory and executive self-enforcement (autotutela) of administrative acts, preclude appropriate dispute resolution mechanisms from receiving legislative treatment comparable to that provided under this Act for civil and commercial matters.”

Accordingly, the Thirty-First Additional Provision of Organic Law 1/2025 provides that:

“The Government must draft and submit to the Cortes Generales, within two years from the entry into force of this Act, a bill addressing alternative dispute resolution mechanisms in the administrative sphere where one of the parties is a public administration. This initiative shall recognize the mediation experiences that have been and are currently being developed in disputes involving public administration within those administrations holding competencies in the administration of justice.”

Thus, we see once again the postponement of the regulation of mediation in its dimension concerning disputes between public administration and citizens.

We hope that the mandate directing the Government to draft a bill regulating this matter becomes a reality as soon as possible, rather than another evasive deferral of the legislative needs surrounding this institution. The reality is that, at this stage, the legal practice shaped by initiatives from various administrations, practitioners, and institutions—which are actively facilitating the use of mediation in the administrative sphere through existing pilot projects—far exceeds the body of statutory legislation enacted on the matter. In the absence of statutory law, this gap is being filled by regulatory and institutional developments that, while occasionally unsystematic, clearly demonstrate the necessity of regulating mediation within administrative law.

We trust that this latest delay in adopting a uniform regulation of administrative mediation will serve to develop provisions that are thorough and accurate, accounting for the unique characteristics of the institution—rather than reflecting an administrative law paradigm still focused more on unilateral powers than on human dignity, and hesitant to open institutional practice to the modern trends that ought to govern the relationship between public administration and society.

References

• Avilés Navarro, M. (2015). La mediación intrajudicial en el orden Contencioso-Administrativo. Instituto de Justicia y Litigación Alonso Martínez. (1st ed.). Universidad Carlos III de Madrid.
• Casado Casado, L. (2023). La oportunidad de la mediación como mecanismo de apertura y flexibilidad del procedimiento administrativo en el contexto de una Administración Pública relacional. Revista Catalana de Dret Public, (67).
• Dobarro Gómez, C. (2024). La mediación en los conflictos administrativos: perspectivas de Derecho español y comparado. (1st ed.). Cólex.
• Fuentes i Gasó, J. R. (2022). La mediación intrajudicial en el procedimiento contencioso-administrativo. In Gifreu Font, J. (Dir.), Litigación administrativa. (1st ed.). Tirant lo Blanch.
• Rodríguez Beas, M. (2023). Los principales problemas del procedimiento abreviado en la jurisdicción contencioso-administrativa española: propuestas de reforma e impulso a la implantación de la mediación intrajudicial. Revista de Direito Econômico e Socioambiental, 14(3).
• Santos Silva, R. F. (2022). Acceso a la justicia y mediación administrativa extrajudicial en el Estado relacional. (1st ed.). Colex.