독일 조정법의 주요 내용과 시사점 - 우리나라의 행정형 ADR 기구의 법제적 개선방안을 중심으로 -

Abstract

In accordance with the European Union Mediation Guidelines, Germany enacted Mediation Act, which stipulated the important general principles that apply in common to mediation as domestic act. The enactment of the German Mediation Act comprehensively regulated key matters concerning the essence of mediation, which is one of the main method of ADR, so that the mediation procedures in various ways could be unified. First of all, the German Mediation Act defines the conceptual nature of Mediation as the spontaneity of the parties and the secrecy of the Mediation process, while defining the Mediator as an independent and neutral person. In addition to the spontaneity of the parties, this Act guarantees the parties’ right to select Mediators and the parties’ right to consent to third-party participation in the mediation process to ensure the autonomy of the parties. It also guarantees the parties’ right to request information on Mediators to secure the effectiveness of the right to select Mediators. The German Mediation Act also provides for matters concerning the disclosure obligations and restrictions on activities of mediator to ensure their independence and neutrality. Meanwhile, the German Mediation Act stipulates the obligation to maintain confidentiality of mediator, etc. in order to realize the confidentiality of Mediator, and also stipulates matters concerning the Mediator’s (re) education and certification Mediator. The main point of this research is to derive various implications for the legislative improvement of Korea’s administrative ADR organization by referring to the main contents of the German Mediation Act. In relation to the legislative improvement of the administrative ADR organization, the problems of the initiation of the mediation process through the imposition of a administrative fine, the problems of a fictitious Acceptance of a proposal of Mediation, and the problems of the authoritative mediation. In addition, legislative measures were presented to facilitate the parties’ application to avoid the Mediator to secure independence and neutrality of the Mediator, and to select the Mediator of the party and to substantiate it. Furthermore, the introduction of legal stipulations and sanctions regulations for confidentiality of Mediation was studied, and the introduction of the (re)education and certified Mediatior system was proposed.