合意型行政争议解决机制是通过当事人之间达成合意的方式化解行政争议的一种纠纷解决机制。它与决定型行政争议解决机制一道，构成了文明社会中解决行政争议的两种理想类型。当前，该机制在我国行政争议解决实践中得到了广泛运用。合意型机制之所以兴起，是因为它回归了当事人在行政争议解决中的主体地位，可以克服决定型机制救济幅度有限、程序僵化、保密性保护不足等方面的缺陷。同时，合意型机制因应了现代行政法上合作治理的趋势，是这一趋势在纠纷解决领域的延伸，有助于缓解社会转型期日益严重的“官民对立”现象。 合意型行政争议解决机制自诞生之日起，就面临着诸多质疑，但这些质疑均难以驳倒其正当性。第一，“公权力不可处分论”本身语焉不详，又难以自洽，更不能反映现代行政法的最新发展状况。第二，行政机关与相对人总体力量对比的失衡，并不必然构成双方达成合意的障碍，而且，中立第三人的主持、律师的介入以及最终诉诸决定型机制的权利的存在，均能够在微观层面对这种失衡结构加以纠偏。第三，确立合意建构过程的保密性原则，而将合意结果公之于众的制度设计，可以实现保密性与公开性之间关系的妥善协调。 自行协商、调解和第三方评估构成了合意型行政争议解决机制的三种基本制度形态。自行协商的开展，以当事人之间具有沟通意愿为前提。为确保自行协商的顺利进行，需要对协商的基本程序作出规定。调解的进行，依赖于中立第三人的居间调和。本文主张在各个行政领域设立具有相对独立地位的调解人，将行政争议消解于行政过程之中；而对于附设于决定型机制的调解活动，则必须贯彻“调审分离”之程序要求。第三方评估机制具有降低当事人不切实际的预期进而促成和解的作用，为此应借鉴域外经验，在我国也建构起独立的第三方评估机制。 合意型行政争议解决机制的引入，并非旨在、也不可能取代决定型机制的地位。事实上，二者处于既交织共生又相互竞争的关系之中。一方面，它们在空间上相互交错，在运作过程中又相互依赖，任何一种机制均不得脱离对方而独立存在。另一方面，二者又在终结纷争和发展法律两个层面上发生竞争，并经由这种竞争，能够在整体上提升行政争议解决的品质和推动法律的发展。
Consensual mechanisms of administrative dispute resolution (CMADR) are the dispute resolution mechanisms which aim at resolving administrative disputes by reaching agreement between the parties. Along with adjudicative mechanisms of administrative dispute resolution (AMADR), they constitute two ideal types of administrative dispute resolution mechanisms in a civil society. Currently, CMADR have been broadly applied into China’s administrative dispute resolution practices. The prevalence of CMADR owes to the return of parties’ subject status in dispute resolution, which makes up for the shortcomings of AMADR such as limited reliefs, rigid process, lack of confidentiality, etc. Meanwhile, CMADR fit in well with the new trend of collaborative governance in modern administrative law, which helps to relieve the increasingly serious antagonism between administrative officials and citizens in the current period of social transformation. Since their birth, however, CMADR have been confronted with multiple objections, but these critical opinions can be demolished. Firstly, the theory of non-disposable character of public power is not only obscure but also self-contradictory, and it cannot reflect the recent development of modern administrative law. Secondly, the general unbalance of power does not necessarily constitute the obstacles to reach agreement between administrative agencies and citizens. The host of neutral third party, the intervention of attorney, and the possibilities to resort to AMADR by the citizens, all of them can correct the unbalanced bargaining positions in particular cases. Thirdly, by establishing the system which confirms the confidentiality of the consensus-building process in principle and the disclosure of the settlement agreement, the inherent tension between confidentiality and transparency in CMADR can be successfully resolved. Unassisted negotiation, mediation and the third-party evaluation constitute the three basic mechanisms of CMADR. Unassisted negotiation can be employed only when the parties have the willingness to communicate with each other. In order to guarantee the successful operation of unassisted negotiation, ground rules for negotiating process needs to be promulgated. The mediation process depends on the third party’s neutral reconciling. This paper suggests introducing comparatively independent mediators into each regulatory area so as to resolve administrative disputes as early as in the administrative process. As for the mediation annexed to AMADR, it is imperative that the procedural requirement of separation of mediation and adjudication be followed. The third-party evaluation mechanism can reduce the parties’ unrealistic expectations and thus promote settlement between them. In this point of view, China needs to learn from foreign experience and establish the third-party evaluation system for the resolution of administrative disputes. The introduction of CMADR is not supposed to and definitely cannot replace the position of AMADR. In fact, CMADR and AMADR are in a both symbiotic and competitive relationship. On one hand, they mutually interlace with one another in space, depending on each other in operating process, and cannot work well without one another. On the other hand, these two mechanisms compete with each other in terms of both resolving disputes and developing laws, and through these competitions, the general quality of administrative dispute resolution can be improved and the development of administrative law be promoted.
