Mediation in administrative proceedings
Public administration is typically associated with authoritative decisions that can be modified only by challenging them through the administrative courts. A recently adopted amendment to the Administrative Procedure Code is designed to soften this image and make the state’s executive authority more citizen-friendly.
The Act of 7 April 2017 Amending the Administrative Procedure Code and Certain Other Acts was signed into law by the President of Poland on 27 April 2017. The proponents of the amendment targeted the perception that administrative proceedings were lengthy, saddled with excessive or misplaced formalism, and marked by an overbearing attitude on the part of the public authorities. They offered solutions designed to achieve a closer partnership between the administration and citizens and to ensure social participation in the exercise of executive power.
One of the solutions introduced by the amendment is mediation—a non-confrontational method of resolving matters with the involvement of a neutral and impartial mediator. Mediation is one form of alternative dispute resolution. Until now, this institution has theoretically existed in Poland within the administrative court system, but in practice has rarely been used. (According to a report issued by the Supreme Administrative Court, mediation was resorted to in eight administrative court cases in Poland in 2015, leading to resolution of one case. It was also used in eight cases in 2016, but none of those cases was resolved through mediation.)
The new regulations permit mediation between parties to administrative proceedings as well as between parties and the administrative authority conducting the matter (new Art. 96a §4 of the Administrative Procedure Code). Amicable conclusion of a case in which the administrative authority and the party take different positions could certainly head off appeals and administrative court proceedings, because when the solution is reached jointly by the party and the authority, the party feels that it has had real input, and moreover has accepted the resolution, contributing greatly to the party’s sense of overall satisfaction with the ultimate result.
It will be permissible to use mediation in all cases where the nature of the matter allows for mediation (Art. 96a §1). Thus mediation should be particularly relevant in cases where a settlement can reached or where the authority intends to issue a decision disadvantageous to the addressee. In such instances, effective mediation could dissuade the party from appealing, and the result in the case may be easier for the party to accept and perhaps more in the party’s favour.
The fundamental principles of mediation will be fully respected: mediation is voluntary (Art. 96a §2) and confidential (Art. 96j §1), the mediator is impartial (Art. 96g) and neutral (Art. 96f), and the parties can select the mediator (Art. 96b §§2–3).
The voluntariness of mediation means that the parties can decide whether they want to participate in it, and can also break it off at any stage without incurring any negative consequences. On top of this, there is freedom in selecting the mediator and how the costs of the mediation will be covered. At the request of the parties or at the authority’s own initiative, the administrative authority will be required to provide notification of the possibility of pursuing mediation. If a party does not consent to mediation within 14 days of notification, mediation will not be conducted, as there is no presumption of the party’s consent under Art. 96c of the code. In line with the general principle that the parties must be duly and exhaustively informed of the factual and legal circumstances of the case (Art. 9 of the code), to ensure that consent is consciously given, the notice concerning mediation will include information about the rules for conducting mediation, the possibility for the parties to select the mediator, and the rules for covering the costs of mediation.
The mediator’s neutrality and impartiality is to be ensured by Art. 96f and 96g of the code, which among other things prohibit an employee of the administrative authority before whom the proceeding is being conducted from serving as a mediator (Art. 96f §3). Otherwise, mediation can generally be led by any individual with full legal capacity and public rights who is indicated by the participants (or by the administrative authority if they do not do so). Thus there is no obligation for the mediator to hold any special qualifications. Rather than particular knowledge and skill, greater weight is placed on the trust which the parties have in the mediator, which should have a favourable impact on the procedure. Another example of respect for the wishes of the participants in the mediation is the option for them to declare that they do not consent to the mediator’s review of the case file (which is otherwise the mediator’s right) within seven days after publication or service of the order directing the matter to mediation (Art. 96i).
One of the greatest advantages of mediation is its confidentiality, which the new solutions are also supposed to ensure. Both the mediator and the participants, as well as other persons such as counsel or translators, are obliged to maintain in confidence all information they learn in connection with the mediation. Such information also cannot be used after completion of the mediation. However, this ban can be set aside with the participants’ approval (Art. 96j §2). The only open document will be the record from the course of the mediation, which the mediator will be required to file with the administrative authorities promptly after conducting the mediation (Art. 96m §§ 1 and 3). The record will be enclosed with the case file and a copy will be provided to the parties.
The record from the course of the mediation will include the determinations made as to the manner in which the case is resolved. If these are within the bounds of the law, they will be binding on the administrative authority, which will have to resolve the matter in accordance with those determinations (Art. 96n §1). The authority will not be permitted to use other documents from the mediation, under Art. 96n §2 of the code. The indication that the aim of mediation is to clarify and resolve the factual and legal circumstances of the matter and adopt determinations on how to resolve the matter within the bounds of applicable law generally excludes the possibility of conducting mediation in matters governed by mandatorily applicable regulations, which do not leave any room for the authority to exercise administrative discretion. To ensure compliance with the law, the authority must conclude a settlement before the mediator, but the authority will clearly have to refuse to do so if the settlement is reached in violation of the law. This need arises pursuant to the cross-reference in the new Art. 121a, under which a settlement concluded before a mediator is governed as relevant by the regulations concerning settlements concluded before an administrative authority, set forth in Art. 117–121 of the Administrative Procedure Code.
But reaching a settlement is not the only possible conclusion of a mediation proceeding. Instead, the party may withdraw or modify its demand, application or appeal. The case may also be resolved by issuance of an administrative decision. Although the decision retains its legal character as an authoritative resolution, it may be much more acceptable to the party when it is issued after conducting mediation.
The institution of mediation in administrative proceedings should also be furthered by the expanded scope of amicable resolution of disputed issues set forth in Art. 13 of the Administrative Procedure Code. This is to be realised as a method of action by the authority as well as a method of developing a resolution to the case. This rule imposes on administrative authorities an obligation to seek an amicable resolution of disputed issues and amicable determination of the parties’ rights and obligations whenever the nature of the case allows, in particular by encouraging parties with conflicting interests to reach a settlement, and by taking actions necessary to conduct mediation. This provision should particularly incline administrative authorities toward mediation in cases where it is suitable.
Including mediation rules in the Administrative Procedure Code may generate numerous advantages: an increase in citizens’ trust in administrative authorities, some lightening of the caseload of the administrative courts, greater efficiency in administrative proceedings and reducing their duration, and increasing the parties’ influence over their own case. But these ambitious aims require a proactive approach by the administrative authorities and a certain change in mentality in the public administration, where there is no tradition of mediation. The success of this new institution will largely depend on whether the authorities are truly inclined to develop joint solutions together with citizens in every case that is suited to mediation.
Adrianna Bartosiak, Dr Maciej Kiełbowski, Administrative practice, Wardyński & Partners