민사조정법에 의한 조정절차의 공정성과 당사자의 절차적 지위의 보장

Since the Judicial Conciliation of Civil Disputes Act was enacted on January 13, 1990, by Act No. 4202, judicial mediation according to the Act becomes an available option for parties who bring their cases to the courts. Judicial mediation has its own procedural nature, which is, and should be, differentiated from litigation and even from mediation that is conducted by a private mediator: judicial mediation that intends to resolve a dispute based on the mutual concession between the parties does not share a purpose of litigation that intends to resolve a dispute according to the rights and duties of laws; and judicial mediation has binding effects on the parties, whereas mediation by a private mediator is a non-binding procedure by a neutral and independent person. Because of its complicated procedural nature, it is disputable how to regulate judicial mediation. Nonetheless, there is an established principle that relates to this issue: judicial mediation, as a binding procedure before the courts, should observe the principles of the Constitution that protect the right to trial and due process. The fundamental rights under the Constitution would be infringed unless autonomy of party is ensured in terms of the opportunities to decide the initiation of the judicial mediation procedure, to participate in the process, and to decide the acceptance of its result by his/her own will, without any coercion. In addition to the protection of the right to self-determination, the neutrality and independence of mediator, the separation of judicial mediation and litigation, and the confidentiality of judicial mediation would enhance procedure fairness that would eventually ensure the principles of our Constitution. Procedural fairness should be employed in each stage of judicial mediation, for respecting parties" rights: It would be the key to improve the quality of judicial mediation.