Understanding Indian Mediation: Comparison of Indian and Korean Mediation Programs
0
조회
0
다운로드
1
인용
0
참고문헌
키워드
초록
Our societies are in constant state of dispute. We need a mechanism of dispute resolution, which is less formal, fast, flexible, cheaper, voluntary, and devoid of lengthy procedures. Mediation is one such method, which is operational in India as well as in Korea. Although the process of dispute resolution through mediation has existed since ages, it has not been able to gain the popularity that it needs. There are several issues responsible for the same and through this research we aim to identify all such problems and try to reach desirable outcome. The purpose and objective of the research is to draw a comparative analysis of contemporary mediation program in India and Korea. The focus is upon the working techniques of courtconnected/ court- led mediation. The comparative approach of India and Korea would help in understanding the basic concept of mediation, functioning in both the jurisdiction. In the midst of Pandemic, when countries were under lockdown we managed to use empirical method of data collection by conducting interviews with several experts/professionals (mostly working mediators at India and Korea). We found that, although, the rationale behind adoption of mediation in India and in Korea varies but, there exist a common need of enhancement and regularizing the status of mediation program. Both the countries lack mediation culture and awareness among the lawyers, judges and the parties. We found, Indian mediation program is similar to US mediation program. Both have similar way of appointment of mediators and enforcement of settlement agreement. Whilst, the mediation program in Korea is a hybrid/ combination of both India and US, with its distinct features.
Abstract
Our societies are in constant state of dispute. We need a mechanism of dispute resolution, which is less formal, fast, flexible, cheaper, voluntary, and devoid of lengthy procedures. Mediation is one such method, which is operational in India as well as in Korea. Although the process of dispute resolution through mediation has existed since ages, it has not been able to gain the popularity that it needs. There are several issues responsible for the same and through this research we aim to identify all such problems and try to reach desirable outcome. The purpose and objective of the research is to draw a comparative analysis of contemporary mediation program in India and Korea. The focus is upon the working techniques of courtconnected/ court- led mediation. The comparative approach of India and Korea would help in understanding the basic concept of mediation, functioning in both the jurisdiction. In the midst of Pandemic, when countries were under lockdown we managed to use empirical method of data collection by conducting interviews with several experts/professionals (mostly working mediators at India and Korea). We found that, although, the rationale behind adoption of mediation in India and in Korea varies but, there exist a common need of enhancement and regularizing the status of mediation program. Both the countries lack mediation culture and awareness among the lawyers, judges and the parties. We found, Indian mediation program is similar to US mediation program. Both have similar way of appointment of mediators and enforcement of settlement agreement. Whilst, the mediation program in Korea is a hybrid/ combination of both India and US, with its distinct features.
참고문헌 (36)
- "Civil Procedure Code", ~ (1908)
- "Arbitration & Conciliation Act", ~ (1996)
- "Delhi High Court Mediation and Conciliation Rules", ~ (2004)
- "Judicial Conciliation of Civil Disputes Act", ~
- Strengthening Mediation in India: Interim Report on Court Annexed Mediations, "Alok Prasanna Kumar", Vidhi Centre for Legal Policy, ~ (2016)
- Anil Xavier, "Mediation: Its Origin & Growth in India", Journal of Pub. Law & Policy, 27 (2006)
- "Asian Survey" (1993), University of California Press
- Chul-Gyoo Park, "Alternative Dispute Resolution", ~ (2016)
- A Study on the Current Status of ADR law System of Korea and the Measures for Its Establishment-Focused on a Proposal for the Alternative Dispute Resolution Act (Plan), "Chul-kyoo Park", Korea Development Institute, ~ (2012)
- Folberg, "Resolving Disputes: Theory, Practice, and Law", pp.506~510 (2010)
- Goldberg, "Dispute Resolution: Negotiation, Mediation, and Other Processes", pp.306~ (2007), Wolter Kluwer
- India Department of Justice Resolving Pending Cases Through Alternative Dispute Resolution Under Section 89 Of Civil Procedure Code: A Case Study, , Ministry of Law and Justice, Government of India, ~ (2019)
- Research on the Development Direction of Korean Alternative Dispute Resolution, "Judicial Policy Research Institute", ~ (2016)
- "Mediation-Its Importance and Relevance" (2010)[URL]
- "Mediation: Realizing the Potential and Designing Implementation Starategies"[URL]
- "Dispute Resolution: Beyond the Adversarial Model" (2010)[URL]
- "Mediation Training Manual, Mediation and Conciliation Project Committee, Supreme Court of India"[URL]
- Resolving Pending Cases Through Alternative Dispute Resolution Under Section 89 Of Civil Procedure Code: A Case Study, Department of Justice, "Marisport A", Ministry of Law and Justice, Government of India, ~ (2019)
- Michael Pryles, "Dispute Resolution in Asia", Kluwer law International, 8(3), pp.220~ (2002)
- Murlidhar, S., "Alternate Dispute Resolution and Problems of Access to Justice", Paper presented at Judicial Exchange on Access to Justice Conference (2003), CHRI[DOI]
- "Court Annexed Mediation, Law Commission of India"[URL]
- Settlement of Commercial Disputes by Mediation in India: Need for Formalized Enforcement Mechanism, CADR- Center of Alternative Dispute Resolution, "Prateek Kumar Singh", RGNUL, ~ (2020)
- Rashika Narain, "Formulating a Model Legislative Framework for Mediation in India", NUJS L. REV, 11, pp.75~ (2018)
- Siyoon Lee, "Experience and Improvement of ADR in Korea", Civ. Procedures, 19(1), pp.479~ (2015)
- Sriram Panchu, "Mediation Practice & Law: The Path to Successful Dispute Resolution", Lexis Nexis, 123 (2015)
- Youngwook Kim, "Alternative Dispute Resolution: Negotiation", Mediation and Arbitration, 154 (2015)
- 정용환, "Criticizing Judge’s Participation in Mediation and Conciliation in Poland and Korea", 동아법학, (82), pp.405~446 (2019), 법학연구소[DOI]
- 정용환, "Interpretation and Application of Public Policy in Enforcement of Foreign Arbitral Awards in India: Comparison with the interpretation of Public Policy under the Civil Procedure Act", 국제거래와 법, (30), pp.263~286 (2020), 법학연구소[DOI]
- 정용환, "Reviewing Current India Backlog of Pending Cases and Excessive Judicial Intervention in Arbitration: Focusing on Setting Aside and Enforcement with Ssangyong Case", 한국부패학회보, 24(4), pp.29~46 (2019), 한국부패학회[DOI]
- 정용환, "Study of Legal Corruption in Indian Courts and Reforming Civil Court System to reduce Pendency", 한국부패학회보, 26(1), pp.201~217 (2021), 한국부패학회[DOI]