Xiner Hu
I. INTRODUCTION
Mediation is a popular form of Alternative Dispute Resolution (’ADR’) that is widely adopted for its efficiency and confidentiality traits. In Korea, mediation, and conciliation (Jojeong) can be understood and used interchangeably in legal practice. Both private mediation and court-annexed mediation have long been judicially and administratively promoted. Both the South Korean government and courts have progressively encouraged the settlement of disputes through ADR procedures. This was specifically seen after the enactment of the Judicial Conciliation of Civil Disputes Act of 1990 (“JCCDA”) (민사조정법) which forms a court-annexed program. Under this program,[1] the courts have significant discretion to mandate a civil mediation process even where there is no agreement or request from either party.
This article will briefly introduce the features of the court-annexed mediation system in Korea. It will then analyse its advantages and a potential dilemma that it benefits the parties and courts in preventing unfair outcomes and backlog of cases, but it potentially over-intervenes in the process of mediation and arguably infringes the parties’ autonomy.
II. COURT-ANNEXED MEDIATION AUTHORITIES
JCCDA came into effect on 1st September 1990 and was most recently revised on 26th January 2002, which subjects civil matters to the mediation process.[2] The Act guides District courts, branches and city or provincial courts to administer the cases of judicial mediation.[3]
After the 2002 amendment of JCCDA, the requirement of the parties’ consent for the trial court to commence mediation was eliminated. There are now two avenues to commence a judicial mediation: the first is by an application from one of the parties in dispute in writing or orally, which comprise a smaller portion in number; the second is by decision of referral by the court[4] where the trial court is refers a pending case to mediation if it considers necessary before the judgment of appeal.[5]
Any of the four entities below may be appointed to be a mediator in a court-annexed mediation:
A). Mediation judge, who may mediate the cases individually;
B). Mediation Council, which usually comprises a chief mediator and two or more commissioners;
C). A mediation judge cooperating with a permanent court-mediator, and
D). The Trial Court, which could preside over the process by itself in the case of court-referred mediation and the court would exercise the same power as a mediation judge.
1. Mediation Council
Article 8 of the JCCDA regulates that “a council of conciliation (mediation) shall be comprised of a chief commissioner and two or more commissioners.’[6] A council of mediation consists of the ’inner council’ and the ’outer council.[7] The inter-council commissioners are appointed by the chief judge while the outer-council commissioners come from professional industry associations such as some law schools, the Korean Bar Association and the Korean Commercial Arbitration Board (’KCAB’), which are optional during early mediation.[8] Outer-council mediators have similar duties to inner-council mediators, but they do not have the authority to make binding decisions.[9] As the mediation panel is non-permanent, it is regarded as being somewhat inefficient.[10]
2. Court-annexed Mediation Center
The system of a permanent court-mediator was introduced on 6 February 2009.[11] Mediation Committees such as the Copyright Deliberation and Conciliation Committee and the Electronic Commerce Mediation Committee (‘CMC’) were successively established. CMC plays a significant role but is not widely noticed. CMC programs were established by high appellate courts in two primary cities, Seoul and Busan, in 2009 experimentally, then extended to several other cities including Seoul, Pusan, Daegu, and Deajeon.[12]
Different from the outer-council mediation organizations, CMC is the first legal entity that could independently make a binding decision without the judge’s review, instructions or the parties’ agreement.[13] The majority of the standing mediators are highly ranked retired judges[14] who have rich experience of mediation in the courtroom. They are appointed by the Minister of National Court Administration and are not allowed to perform other duties.[15]
In an interview conducted by Yonghwan Choung, most of the parties in the CMC showed their satisfaction with the mediation program. Their reasons include a preference to share their views in the mediation-conference room rather than being interrupted by the judge during the trial.[16] Despite this, due to the low rate of lawyers’ participation in mediation, the standing mediators in CMC would usually provide advice and instruction to the parties who were not represented. Consequently, this may infringe their impartial role and restrain the willingness of the parties to share his or her confidential information when a party may perceive a form of bias for the other party by the mediator.
3. The Trial Court
In South Korea, the court of the first instance to rule without outside help is viewed as a virtue. Therefore, most cases are resolved through mediation led by the court on the first instance itself instead of referral.[17]
On the one hand, the scheme that the same judge conducts mediation and litigation benefits the efficiency and continuity of process between mediation and trial.[18] On the other hand, ’a judge operates as the finder of both law and fact’ means it may eliminate the willingness of open communication between the parties when making their statements, even though the parties are encouraged to resubmit statement in the subsequent trial proceeding. The discretion of the courts has eased the accumulation of unresolved cases in the courts. While this is consistent with the initial purpose of the legislation, Civil Court of First Incident judges need to alternate positions as mediators for the same cases.[19] Consequently, their workload did not reduce as expected.[20] The overloaded situation under time pressure further limits the parties’ sufficient opinion expression. As the concerned by Byung-Hyun Yoo, the enforcement from the courts of mediation contradicts the essence of ADR in giving unnecessary pressure on the parties.[21]
III. DISADVANTAGE OF COURT-ANNEXED MEDIATION
In addition to the issues mentioned above, there are other shortcomings of the court-annexed mediation program that need to be considered. For example, the right to trial by the parties is potentially deprived. The parties may be forced by a judge to make agreements regardless of whether they accept the judge’s proposed plan. Both in-court settlements and standing mediators’ binding decisions have the same legal irrevocability of judgment. Once the parties do not issue an objection within the period of two weeks from the judgement date,[22] the claim-preclusive effect on mediated agreements and mediators’ binding decisions would prohibit the parties from commencing retrial or quasi-retrial.
A feasible solution is to increase the proportion of parties adopting private mediation in civil disputes. Compared with the judges or scholars in the judicial system, the private mediator may provide a better service. An excellent model for this is KCAB. As the only authorized arbitration institution and ADR service provider in South Korea, it provides mediation services under the purview of the Ministry of Justice (K-MOJ) since 1970. KCAB has a broad scope of qualified mediators who are experienced in mediation.[23]
IV. CONCLUSION
The Korean judicial authority aimed to develop Korean mediation programs to relieve the overloaded case docket in courts. While the current court-annexed mediation program is highly court-controlled and can operate efficiently, the mandatory nature of the court-annexed mediation program is suspected to cause mediation to lose its uniqueness as an ADR process that is flexible and promotes party autonomy. Therefore, this can gradually transform mediation to be court dominated. Private mediations and regular training courses for mediators would be beneficial to alleviate this as it would also promote the professionalism of practitioners in this area of mediation.
[1] (South Korea) Law No 4202 (13 January 1990) (“JCCDA”)‘.
[2] Ibid.
[3] Ibid art 3(1).
[4] Nohyoung Park, ‘Court-Annexed Mediation in Korea’ (2009) 17 (Special on Mediation) Asia Pacific Law Review 151, 157.
[5] JCCDA (n1) art 6.
[6] JCCDA (n1) art 8,
[7] Byung-Hyun Yoo, ‘Current Trends of Alternative Dispute Resolution in Korea’ (2007) 2 Korea University Law Review 28, 54.
[8] Minjung Kim, “Sabeobhyung ADRyi Baljeonbanghyang [Promotion of Court ADR]” (Conference Paper, in The Office of Court Administration, Conference Of 20 Year Anniversary of Korean Judicial CONCILIATION OF CIVIL DISPUTES ACT (2010)) 204, 212, 215-220; cited in Byung-Hyun Yoo (n8) 58.
[9] (Junyoung Jung, Minsajojeong Jedoyi Hyunhwanggwa Junmang [Current Review and Prospect of The Civil mediation] (Conference Paper, Office of Court Administration, Conference of 20 Year Anniversary of Korean Judicial Conciliation of Civil Disputes Act (2010)) 71, 113-14 cited in Byung-Hyun Yoo (n8) 57.
[10] Nohyoung Park, ‘Court-Annexed Mediation in Korea’ (2009) 17(Special on Mediation) Asia Pacific Law Review 151, 157.
[11] JCCDA (n1) art 7(2).
[12] Byung-Hyun Yoo (n8) 19.
[13] JCCDA (n1) art 30.
[14] Byung-Hyun Yoo (n8) 13.
[15] JCCDA (n1) art 10(1), (2).
[16] Yonghwan Choung, “Achieving Justice Through ADR: An Analysis of the Korean Mediation System” (2017) Theses and Dissertations 39, 103.
[17] Byung-Hyun Yoo (n8) 46.
[18] Byung-Hyun Yoo (n8) 46.
[19] JCCDA (n1) art 7 (3).
[20] Korean Civil Procedure Act, arts 451, 461; also see Choung, Yonghwan, ‘Achieving Justice Through ADR: An Analysis of the Korean Mediation System’ (2017) Theses and Dissertations 39, 52.
[21] Ibid.
[22] JCCDA art 34.
[23] Kyung‐han Park, ‘Mediation Practice in South Korea’ (Australian Disputes Centre, 1 November 2011) https://disputescentre.com.au/mediation-practice-in-south-korea/.