ADR의 활성화와 법원의 역할 － 영국의 민,상사 법원중개제도를 중심으로 －

Abstract

In the United Kingdom, ADR is almost synonymous with mediation. The term ‘alternative dispute resolution' (ADR) is defined in the Glossary of the CPR (Civil Procedure Rules) as a ‘collective description of methods of resolving disputes otherwise than through the normal trial process'. In practice, reference to ADR is now almost understood as being a reference to some form of mediation by a neutral third party. As a result of Lord Woolf's judicial reform in 1996, the new Civil Procedure Rules (CPR) came into effect on 26 April 1999. The essence of CPR can be summarized as following: "in civil matter, for most people, most of time, going to Court is, and should be, the last resort". Thanks to this idea, the English courts play an active role in the proliferation of ADR by doing active case managements. Active case management means encouraging parties to use ADR procedures if the court considers that appropriate and facilitating the use of that procedure. This judicial policy has been assisted by pre-protocol actions, practice directions, etc. What is interesting point in court-annexed mediation system is that if a party takes no steps to attempt to use mediation or refuse to do so, then he or she may be imposed a monetary penalty by the court. Therefore, the parties to disputes are systematically advised to consider seriously the use of mediation before and during the court proceedings by the court concerned. Although the legal culture of common law system is quite different from Korean one, it is clear that the limit of litigation - focused dispute settlement has been quite recognised. In this aspect, the court-annexed mediation system of the U.K seems to have much implication on how the courts make contribution to activation of ADR system.