Civil mediation
Civil mediation
- Civil mediation is a program in which a judge or a mediation committee set up by the court examines all the related documents and different aspects of the dispute and mediates a settlement between the disputing parties. Disputes can be resolved quickly and simply through a civil mediation (Article 1 of the Judicial Conciliation of Civil Disputes Act).
- Compared to a litigation, a civil mediation can resolve a dispute quickly. When a mediation is requested, the date of mediation is scheduled promptly and in most cases, the mediation can be concluded in one mediation session. The cost of mediation is also less than that of a regular civil litigation.
· The commission fee that must be paid to the court when applying for a civil mediation is 1/5th of the stamp fee that must be submitted when filing a lawsuit. The pre-paid transmittal fee covers five transmissions per person, which is less than that for the small claims lawsuit (10 transmissions per person).
Differences between civil mediation and civil litigation
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Civil Mediation
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Mediation costs less than a litigation and also has the added benefit of resolving disputes efficiently and with greater convenience. Mediation is intrinsically different from a litigation in the sense that it requires the agreement of the parties. It must be mediated by a 3rd party and this also makes it different from a settlement which does not always call for a mediation.
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Civil Litigation
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Litigation is a system in which both of the disputing parties must provide corroborating evidence on factual relations over which the parties are disputing and claiming their rights. The court decides which side is right and resolves the dispute.
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Civil mediation procedure
Application for civil mediation
- Civil mediation is launched when one side of the parties in the dispute applies for mediation through the court, or the judge hearing the dispute case decides to assign the case for mediation based on his or her authority (Articles 2 and 6 of the Judicial Conciliation of Civil Disputes Act).
- Application for civil mediation can be done in person or in writing (Article 5 of the Judicial Conciliation of Civil Disputes Act).
Notification of the date of civil mediation
- When a civil mediation is requested, the date of mediation is scheduled and notified to the parties in dispute (Article 15(1) of the Judicial Conciliation of Civil Disputes Act).
- The parties in dispute must appear in court on the date of the mediation and testify before the mediating judge. However, if the parties are under special circumstances, the mediating judge may grant them permission to send a representative in their place or to be accompanied by an assistant (Article 6(1) of the Judicial Conciliation of Civil Disputes Rules).
- If deemed justifiable by the conciliation judge, he/she may set a date of hearing for conciliation through relay facilities or relay devices (e.g., videos) or online video devices upon application of the applicant or consent of the other party (Article 6-2(1) of the Rules on Judicial Conciliation of Civil Disputes).
Concluding a civil mediation
- A mediation is concluded when the parties come to an agreement and a mediation protocol is written up (Article 28 of the Judicial Conciliation of Civil Disputes Act).
- Based on its authority, the court can make a decision that replaces the mediation if ① the defendant does not appear on the date of mediation; ② no agreement is reached; or ③ there is an acknowledgment that the agreement between the parties is not appropriate. This decision, which replaces the mediation, carries the same effectiveness as a judicial compromise if ① there is no appeal requested within 2 weeks; ② the appeal request is dismissed; or ③ the appeal request is withdrawn (Articles 30, 32, and 34(4) of the Judicial Conciliation of Civil Disputes Act).
Effectiveness of civil mediation
Effectiveness of civil mediation
- Civil mediation concluded between the parties carries the same effectiveness as a judicial compromise (Article 29 of the Judicial Conciliation of Civil Disputes Act). A litigation cannot be filed again and if the obligations in the mediation are not performed, the applicant can request the court to enforce the performance.
- When ① a decision is made not to mediate; ② the mediation ends without concluding; ③ no appeal is requested within 2 weeks after a decision that replaces mediation is made, then a litigation is considered to have been lodged and a new litigation process is launched (Articles 26, 27, 34, and 36(1) of the Judicial Conciliation of Civil Disputes Act).