ADR의 이념론

Abstract

What are the Ideals of ADR? What is the Philosophy of ADR? What is the true spirit of ADR? What is the Motivations for ADR? These are the subjects that I have studied since I took a great interest in ADR. Today, ADR is becoming the preferred choice for the resolution of conflict and disagreement, because ADR processes are usually faster, less expensive, less time-consuming and more conclusive than litigation. In Korea ADR has now become a useful dispute resolution and particularly the court-annexed ADR has produced a good outcome. It might depend primarily, I think,on the 1990 Civil Conciliation Act('CCA'). If mediation is not successful or the respondent is absent on the day of mediation, the judge may render 'compulsory conciliation', which is an authoritative decision of the court (CCA, Article 30). A Party who is prejudiced by such compulsory conciliation can petition to have the conciliation decision nullified within two weeks of the decision. This may result in the party returning to legal proceedings which have previously been filed (CCA, Articles 34 and 36). Alternatively, if there is no objection, the decision has the same effect as a judicial compromise (CCA, Article 29). But the court-annexed ADR has many problems such as substantially compulsory mediation (or conciliation, legally non-binding arbitration) and mediation by a presiding judge that cause many public resentments. The activating and improving countermeasures of the court-annexed ADR with the early mediation that is estimated successful relatively are only symptomatic and do not make the problems fundamentally cured. And so I think the problems (substantially compulsory mediation and mediation by a presiding judge) should be reviewed fundamentally. It is desirable that ADR is started by agreement of the parties. And a presiding judge had better refrain from being a mediator. And compulsory mediation is not appropriate for the ideals of ADR and should be refrained to the utmost. In order to make ADR trusted by people and available more frequently than litigation we must first of all establish the ideals of ADR rightly. The ideals of ADR which I found attentively are Justice, the empowerment of the individual, Moral Influence,Heartfelt Care about parties, Fairness and Speediness. According to these ideals we need to redesign and construct systems and processes other than adjudication by a presiding judge. A fair and neutral third party should respect the empowerment of the individual and the principle of co-operative problem solving hoping at last the preservation or enhancement of personal and business relationships. I wish ADR will be a more appropriate and independent dispute resolution rather than an alternative and assistant dispute resolution through the realization of the ideals of ADR.