협상을 통한 조정 방식의 싱가포르 조정절차 이행법 제정의 필요성

초록

Negotiation- and mediation processes are dispute resolution system in which the right to lead the dispute resolution process and form the process is entirely entrusted to the each party. The procedures are leads by the parties of the negotiation and mediation. For this reason, in Western mediation, there is no room for terms such as mediator adjudicate the case by the ex officio authority of their own. In the Singapore Mediation Convention, mediation is basically a procedure which only one mediator acts as a facilitator who stands on impartial peacemaker of two parties and promotes dialogue and reconciliation between them. Mediator directs and leads the process as a neutrals, and if the parties do not settle of their own, the mediator cannot regarding the case as settled (regarding settlement). Unlike the Singapore mediation convention, Korea judicial mediation Act(민사조정법 in Korean) and some Korean administrative committee mediation Act(각종 행정위원회 조정법in Korean) gives the same effect of court's final judgment or regarding settlement effect in case two weeks past after “the mediation judgment(조정갈음결정 in Korean)”. Especially the Korean administrative committee on mediation, the administrative branch still have strong regulation power, also have the same mediation effect of the court's final judgment, which can easily used as coercion tools to the one party. Accordingly, making the implementation mediation Act suitable to the Singapore Mediation Convention which corrects Korea's Court Mediation Act (which is actually a law that promotes the speedy conclusion of civil cases in the court), is necessary and urgent before the Korean parliament’s ratification of the Singapore Mediation Convention. In case making the implementation mediation Act, it is very important to have a basic understanding on the differences between the characteristics of “negotiation and mediation group and “arbitration and trial” group. The present Korean mediation condition is different from the court or administrative’s perception that there are no problems as of dispute resolution on mediation. In Korean mediation, respecting the party’s wish and promoting autonomous agreement of the parties are of no importance at all. Many Korean mediators consider the mediation as another kind of adjudication. Many of them think the so-called compulsory mediation and regarding mediation decision is essential part of mediation. The present chaos of the Korean mediation system, in some ways, originates from the court controlling civil mediation system. Although Korean Judicial branch changed the name “compulsory mediation” into “regarding mediation decision” that replaces mediation while there is no settlement of party, but the mechanism is all the same. The reason why this happens may be due to the Korean court has been not faithful to its original role of trial and judgment. The Korean court think that they can and have to resolve every kinds of disputes including mediation in Court, and it is more desirable for the court to take the lead all the dispute resolution system. For this reason, Korean Court is difficult to escape from the criticism that Korean judicial mediation is a system designed to expand court institutions or organizations concerned on Mediation. It is also the same to the established many administrative mediation committees under the administrative branch. Therefore, clearly distinguishing from the essential characteristics between “negotiation/ mediation group” and “arbitration/trial group” is very important, which establishes a basic foundation for restoring the original role of the court and the Administrative Mediation Committee. In this paper, rather than categorizing the negotiation/mediation group and the arbitration/trial group based on the foreign mediation system, I attempted to distinguish the two groups according to the current situation of Korean mediation. By recognizing the essential differences between the two groups through the present Korean mediation system, the Korean Court could focus on their original role of trial and/or adjudication, and it also affect to the Korean Administrative Mediation Committee's mediation system. Based on these discussions, the mediation model system based on Singapore Mediation Convention could reduce the loss of national finances caused by the extraordinary Korean mediation system. The present Korean mediation system, which is incompatible with the Korean civil procedure system, also could be improve to the Global mediation standard. It is urgent to establish new Korean dispute resolution system leading by the private sector and prepare the new Korean Mediation Implementation Act that faithfully reflects the contents of the Singapore Mediation Convention.

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