Court-Connected Mediation in Korea

By Woo, Kwang-Taeck | Dispute Resolution Journal, May 1999 | Go to article overview
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Court-Connected Mediation in Korea

Woo, Kwang-Taeck, Dispute Resolution Journal

Mediation of civil cases in Korea is not mediation in the strictest sense as we understand it in the United States. One of the principal differences, the author says, is that when parties are unable to reach an agreement, the mediator can step in and render a decision. This article outlines the mediation process in Korea, and highlights how it differs from its Western counterpart.

The modern independent judicial system in Korea which started in 1894 was disrupted by Japanese colonial rule from 1910 until 1945. During that period Korea was forced to adopt the Japanese legal system which had been received from the modern European countries that used civil law. That adoption resulted in modern Korea's eventual assimilation of the European civil law system.1

Korea is not a federal state and the ordinary Korean courts are organized in a unitary system of three levels: District Courts (including the specialized Family Court), which are the courts of original jurisdiction; the High Courts, which are the intermediate appellate courts; and the Supreme Court, which is the highest court.2

The primary source of law regarding civil litigation procedure is the Code of Civil Procedure, which was enacted in 1960 and revised extensively in 1990. Civil lawsuits may be initiated in any district court, branch court of a district court, or municipal court. The parties are required to present oral arguments and evidence in support of their arguments. The court may conduct an ex officio examination of evidence only when it is impossible to prove the case with evidence presented by the parties. It is noteworthy that factfinding authority is vested exclusively in the judge. At the end of a trial, the judge enters a written judgment stating the reasons for the decision. A party who is dissatisfied with the judgment of a single judge on any question of the fact or law may appeal to the appellate division of the district court. An appeal against the judgment of a three-judge panel of a district court is lodged with a high court. Questions of both law and fact may be grounds for appeal. Appeals from the rulings or judgments of either the high court or the appellate division of the district court must be filed with the Supreme Court, where only questions of law may be heard.3

Definition and Nature

The civil mediation procedure is a procedure of dispute resolution, in which the court intervenes between the parties with disputes about civil matters, and settles those disputes by promoting an agreement on the basis of mutual concessions in accordance with reason, equity, and the actual circumstances of the case.4 The characteristics of civil mediation are (1) the voluntariness of the parties, (2) the judgment of the mediator (mediation agency),5 (3) informality and simplicity of process, and (4) confidentiality of the procedure. Disputes must be settled by the parties' voluntary will on the grounds of mutual concessions. At the same time, disputes must be settled in accordance with reason, equity, and the actual circumstances of the case. A mediator judges whether the settlement is in accordance with these parameters. Although the parties reach their agreement voluntarily, the agreement must be approved by a mediator (mediation agency). In mediation, parties may state their own views freely and produce any documents or information. Procedural law, including evidence law, is not required as it is in litigation. The statements of the parties or interested persons made during the mediation proceedings are inadmissible in subsequent civil litigations.6

Generally, the mediation procedure in the United States is conducted by a neutral third person called a mediator. The court does not intervene in the mediation procedure directly and a mediator does not have decision-making authority. However, in Korea's civil mediation procedure, the court intervenes in and plays a leading role in the mediation procedure as a mediator.

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