Newsletter
Mediation in Administrative Litigation as a Dispute Resolution Mechanism
The administrative litigation mediation system was introduced under Articles 228-2 to 228-6 of the Administrative Litigation Act (“ALA”). This system has been in effect for over two years, providing an effective avenue for resolving administrative disputes and offering timely and efficient protection of both parties’ rights and interests.
Based on our firm’s practical experience, the following is an outline of the current procedures for mediation in administrative litigation:
Mediation is permitted during both the first and second instances of administrative litigation. However, pre-litigation mediation is not permitted; mediation can commence only after the administrative case has been formally filed with the court.
When a party to the litigation has the right to dispose of the litigation’s subject matter and mediation does not harm the public interest, the case may be referred to mediation by mutual consent. In practice, the plaintiff may proactively request mediation to facilitate dispute resolution.
Furthermore, when necessary and with the court’s permission, the scope of mediation may extend beyond the litigation’s subject matter. A third party may also participate in the mediation process upon the court’s approval or notification (Article 228-2 of the ALA). Nonetheless, administrative agencies generally prefer to limit mediation discussions to matters within their jurisdiction.
Mediation proceedings are typically conducted by a mediator appointed by the administrative court from a roster of mediators (external third parties). When mediation appears likely to succeed, or when otherwise necessary, a judge may attend to confirm or facilitate the process. Judges may also mediate a case directly whenever they consider it appropriate (Article 228-3 of the ALA).
In cases requiring compulsory legal representation, attorneys are generally expected to accompany their clients during mediation to safeguard the parties’ interests and ensure effective mediation.
Upon referral to mediation, litigation proceedings are suspended (Article 228-6 of the ALA, applying under Paragraph 2, Article 420-1 of the Code of Civil Procedure). The standard mediation period is four months, which may be extended by agreement of the parties. If mediation fails, the case resumes litigation proceedings before the court.
It is important to note that statements, concessions, or recommendations made by mediators, judges, or parties during mediation shall not be used as a basis for subsequent judicial rulings if mediation is unsuccessful (Article 228-6 of the ALA, applying under Article 422 of the Code of Civil Procedure). This rule is intended to encourage open and candid communication during mediation.
If mediation is successful, the litigation terminates (Article 228-6 of the ALA, applying under Paragraph 2, Article 420-1 of the Code of Civil Procedure). A mediation record is prepared, which has the same legal effect as a judgment and may serve as a writ of execution. Within three months from the date of the successful mediation, the plaintiff may apply for the return of two-thirds of the court costs paid.
The introduction of mediation in administrative litigation has indeed brought a new perspective to dispute resolution for all parties, including both individuals and agencies. The specific mediation processes and outcomes vary depending on case circumstances and agency policies, resulting in differing degrees of flexibility that cannot be uniformly prescribed.