미국 법원연계형 조정의 운영과 시사점

뉴욕동부연방지방법원 과 뉴욕카운티 법원의 사례를 중심으로

Court-annexed mediation reform is being discussed by the Korea Supreme Court and some scholars in Korea. This idea originates from the analysis that Korea’s court-mediation[민사조정(民事調停) in Korean] is totally different kind of mediation in contrast with western country’s mediation. Many Korean scholars and judges says that Korea’s court mediation is actually modified kind of judgment[재정(裁定) in Korean]. Korea’s court judges are supervising the same civil case with a mediator and adjudicator successively. The same judge could be a mediator continuously after the judicial process changed into mediation. After the court mediation process finished, the same judge who supervised mediation as a mediator could adjudicate again the case with a judge. Many lawyers and legal professionals are suspicious about judge’s role in court-mediation and trial. These two roles and two processes are contradictory each other by its own characteristics. Korean judges are forced to finish his case into a mediation in a very short time by the judicial authorities. The rate of mediation is a very important requisites of judge’s performance assessment with a promotion standard. Due to this circumstances, judge’s mediation could be coercing to the parties and lawyers. According to this background, this paper has researched on court-annexed mediation in New York city. Eastern District of New York Federal court and New York county court were selected as a sample of American court-annexed mediation. Strict separation of mediator and judge’s roles are more precisely investigated and focused. The characteristics of confidentiality, impartiality, disqualification of mediators are also reviewed. This paper also introduced the important role of magistrate judges in the Eastern District of New York Federal court. This paper could be helpful to prepare for Korea’s general dispute resolution act and to make differentiated mediation process in contrast with Japan’s ADR promotion act.