Theoretical and practical foundations of resolving disputes falling within the subject matter of administrative court proceedings through the institution of mediation

Abstract

The present scientific article comprehensively examines the possibilities and future prospects of applying the institution of mediation, as one of the methods of alternative dispute resolution, within administrative procedural legal relations, particularly in the resolution of general actions for performance. The study employs a comparative legal analysis of the legislation and legal practice of foreign jurisdictions, including Germany, Austria, Italy, France, the Netherlands, Switzerland, and Türkiye. It identifies the role of mediation in disputes of a public-law nature, as well as its advantages and potential risks that may arise during its implementation. The article argues that although the adoption of unilateral legal acts by administrative authorities, the exercise of public authority powers, and their structurally superior position have traditionally complicated the integration of alternative dispute resolution mechanisms into the sphere of public law, mediation may nevertheless function as a highly effective method in certain administrative areas. These areas primarily include cases involving the discretionary powers of administrative authorities and disputes concerning factual acts that constitute the subject matter of general actions for performance. The research also identified legislative gaps within the legal framework of the Republic of Azerbaijan. The current Law of the Republic of Azerbaijan “On Mediation” does not provide for mandatory participation in an initial mediation session as a prerequisite for disputes arising out of administrative legal relations, and there are no imperative provisions in special legislation aimed at promoting public mediation. At present, the excessive workload of administrative courts, the prolonged duration of judicial proceedings, and the fact that, in general actions for performance (Allgemeine Leistungsklage), evidence of material significance to the case is often concentrated almost entirely within the respondent administrative authority (for example, in disputes concerning the incorrect calculation of pensions or taxes), further reinforce the necessity of resolving disputes through mediation at an early pre-trial stage. As a result of the conducted research, the author proposes the establishment of a special regulatory framework that differs from general private-law rules and takes into account the specific characteristics of administrative law and the requirements of the public interest. The article strongly advocates for the introduction into legislation of a mandatory initial mediation stage prior to filing a claim in general actions for performance (Allgemeine Leistungsklage), particularly in cases where the administrative authority appears as the claimant. The implementation of this mechanism would significantly reduce the workload of the judicial system, save time and financial resources for both citizens and the State, facilitate the prompt exchange of documents and information during the mediation process, and enhance public trust in administrative authorities.