민사소송법상의 ADR 분류체계의 재검토

A study on the need of reclassifying ADR in Korea

Korea ADR has been classified as court settlement, court mediation (conciliation) and arbitration. Due to this classification, Korea ADR has been taking it for granted that court-centered or government-sponsored ADR is a unique form of ADR. In the case of court mediation, judge control processes in every case as a presiding judge. From these systematic background, judge naturally considered as mediator and adjudicator at the same time at the same case. Judge also could recommend mediation­ and settlement adjudication in spite of each party doesn t agree to other s assertions. The mediation­ and settlement adjudication has also Res Judicata effect in case each party doesn t make a formal objection in two weeks. Res Judicata effect of a settlement extended even pre-claim settlement that each party agree settlement superficially in front of single judge or city/county judge who want to notarize their settlement fact only. Res Judicata effect of mediation(conciliation) extended also to the administrative branch mediation by the law of administrative committee mediation law, which was enacted by the power of the each branch. I would like to suggest in a more flexible and fundamental classification of ADR ; Negotiation, Mediation and Arbitration. Adjudicative mediation and settlement need to be removed from ADR and reclassified into adjudication system due to their elements of adjudication.