프랑스의 ADR제도 － 법원관련 중개 및 조정제도를 중심으로 －

Abstract

Mediation and conciliation are the major forms of the Alternative Dispute Settlement (ADR) in France. Mediation is defined as the act by the mediator of seeking to bring the two parties together and helping them to find a solution to the dispute between them. Mediation may take place either out of court or in the course of legal proceedings. In the latter case, it is regulated by sections 131-1 and following of the new code of civil procedure and proceeds under the control of the judge. Any judge to whom a dispute is referred may, with the consent of the parties, have recourse to mediation: for this purpose, he appoints a mediator, a third person who is qualified, impartial and independent. The mediation process must not exceed three months and its confidentiality is guaranteed. The mediator’s remuneration is set by the judge and is the responsibility of the parties, who must make a provisional payment at the start of the procedure, with the exception of impecunious parties who are eligible for legal aid. When mediation takes place out of court, there are no general regulations governing it. Conciliation is the agreement reached by the parties, either by discussion between themselves or through a third party, the conciliator. In the judicial context, conciliation is defined as an agreement concluded between the parties in the case, under the aegis of the judge so that the proceedings may end in a negotiated solution and not one imposed by judicial authority. There are two mechanisms of conciliation in French code of civil procedure. One is the preliminary attempt at conciliation before the court of first instance and the local court. the applicant applies orally or in writing to the clerk of the court’s office. The clerk of the court calls the parties together by means of an ordinary letter. If the conciliation is successful, the report, signed by the parties, the judge and the clerk of the court, is legally binding. In the absence of conciliation, the case may either be heard immediately if the parties agree, or there may be a summary or a declaration to the court office, depending on the seriousness of the claim and the nature of the dispute. In practice conciliation hearings are held before a judge in most courts of first instance. The other is the conciliation ordered during the legal proceeding with the consent of the parties. The court of first instance or local court may, with the consent of the parties, appoint a conciliator to attempt a conciliation. He sets the duration of this mission, which may not exceed one month but which may be renewed once only. The conciliator receives the parties in complete confidentiality. In the event of a memorandum of agreement being produced, it must be submitted for the judge’s approval. In the event of failure, the proceedings resume their course once more. In the court-connected ADR system of Korea, there are reconciliation and conciliation. Reconciliation is different from French mediation in the light of the active role of a third party intervening the dispute settlement. Compared to the court - connected mediation and conciliation in France, there is no distinction between mediation and conciliation in the civil procedure law of Korea. Korean conciliation system looks much similar to French conciliation.