Mediation and administrative merits review: an impossible goal?
The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from an administrative decision may not accommodate the philosophy, logistics and procedures of mediation. The power dichotomy of the disputants, inflexible decisions within institutionalised contexts and public policy concerns all work together to present mediators with challenging environment for open and earnest negotiation. Consideration of the appropriateness of mediation within this forum must take into account both the context (the objectives of the court or tribunal, the potential for bias, and whether mediation is mandatory) and the content (the power differences of the parties, the appropriateness of confidentiality and the ability to monitor ‘fairness’) of the decision being reviewed. Only then can the objectives of mediation and administrative merits review be accommodated.