Dr. Samah Khaman
Assistant Professor of Procedural Law – Kuwait International Law School

Abstract:

We cannot disagree today regarding the problem hovering around resorting to the state’s judiciary to settle disputes in general, and administrative disputes in particular, even in the most advanced countries. Also, the importance of searching for alternative means to access justice cannot be denied as justice institutions in the state are lacking the justice sought by individuals as well as the administration.
There is no doubt that examining alternative methods for settling administrative disputes in comparative legislation, along with explaining the method of their application by courts in those countries, is extremely important, because it may contribute in one way or another to attempting to eliminate the problem of slow litigation in our Arab countries, especially in Kuwait and Egypt. Hence, we have decided to address, through this research, a new system for settling administrative disputes, which is mediation in its two types, both conventional and judicial as it was adopted by the French legislator under Law No. 1547/2016.
This paper follows the descriptive and comparative approach through which we were able to draw the principles of mediation and its theoretical features on the one hand, and clarify the practical measures taken by the Ministry of Justice and the State Council to implement this law on the other hand. Focusing on clarifying this part is a confirmation of the insufficiency of legislating laws to adopt the new means of settling disputes due to the novelty of this system and the reluctance of litigants and lawyers to resort to it.
The paper is concluded with several results, the most important of which is that the existence of arbitration or conciliation side by side with the judiciary does not at all substitute for the adoption of new methods to ensure the settlement of administrative disputes, either completely amicably through conventional mediation or even under the supervision of the judiciary by resorting to judicial mediation. However, it should be considered that the legislation of a law that allows the recourse to mediation of both types cannot change the perception of peoples who do not resort to dialogue by nature, nor can it allow the development of this new method. This would lead to locking these laws in forgotten drawers unless jurists, the judiciary and lawyers join forces to encourage litigants to pursue this method and resort to it.
Therefore, the researcher concluded by recommending the necessity of adopting mediation to settle administrative disputes that are witnessing a remarkable increase annually in both Kuwait and Egypt while abandoning the idea of ​​sanctifying relations that are governed by administrative law and that do not affect the state’s public order, all of this while providing the legislation with developed structural and administrative organization to be applied on the ground, using the strengths and weaknesses that were elucidated from the French experience and presented in this research.

Keywords: slow litigation, alternative means, council of State, mediator, 21st century’s justice.

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