Alternative Dispute Resolution, Administrative Law, MARD, Mediation, Conciliation, Arbitration, Council of State, Administrative Justice, French Law
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Abstract
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Abstract
The development of alternative dispute resolution methods in administrative law, known as MARD, and their integration into the French legal system.
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[...] There is also a certain heterogeneity in the objectives. Other modes of settlement only want to rekindle dialogue and calm the conflict. C. Typology of MARD We will talk about MARD disputes: - The administrative remedies are institutional remedies that do not require the intervention of a third party, the complainant sends a complaint to the administration, some are mandatory. - The conciliation and mediation: procedures that involve an independent third party whose role is to facilitate exchanges and negotiation in order to resolve a dispute and the mediator also. [...]
[...] The ignorance of the parties and of the citizens does not favor the application of the MARD. These are modes that by nature are far from the image of administrative matter and are little known and suffer from many prejudices: - Des procedures not exclusively legal that is to say that we resort to tools that are not only legal tools, assimilated to negotiation and bargaining procedures - The administration when it resorts to it does so in a logic of legitimization of its action and not in a logic of exchange - The development of MARD would aim to dissuade individuals from forming appeals - MARDs are designed to decongest the administrative jurisdiction, achieve economies and lighten the state apparatus by reducing the stock of cases before the administrative jurisdiction It is a matter of proceeding in solutions where the administration engages to renounce its interests. [...]
[...] The DUE has highlighted the need for MARDs. A number of texts have had an impact on non-regulatory matters, the 2008 directive promotes mediation for issues related to the relationship between the administration and users as soon as the administrative service in question does not exercise a regalian mission. At the level of the Council of Europe, the spread of MARDs has been very marked through the adoption of the recommendation of 5 September 2001 and provides for MARDs: - Conciliation - Mediation - Arbitration » for administrative matters provided that it applies to subjective contentious matters that is contractual contentious matters and liability contentious matters. [...]
[...] All the construction of the characteristics of administrative law is organized around the idea of a vertical law. However, the administrative party is not at the same level in principle during a dispute against the administration, but in the MARD they are brought as much as possible to a relationship of equality. B. In French internal law The essential place occupied by the administrative judge in administrative justice, which is clear for a relatively long period of time, throughout the 20th century, the administrative judge did not intend to relinquish its prerogatives to give them to a third party. [...]
[...] At the same time, the question of alternative modes of dispute resolution, as in private law, is advanced to demonstrate the interest of alternative modes of dispute resolution. The administrative jurisdiction is also congested. The time gain is remarkable with MARD. A judicial or conventional mediation is settled in 3 months (renewable once). The cost is also lower. Even if one has to pay the third party who intervenes, it is much lower than the cost of operating justice. MARD allows finding a solution that will be adapted to the situation, taking into account, when necessary, equity. [...]
