민사조정 통계의 법사회학적 해석

Abstract

More than twenty years ago, the Korean Judiciary has launched its brand-new court-annexed mediation system with the promulgation of Judicial Conciliation of Civil Disputes Act of 1990. This article tried to analyse from the sociological perspective the time-series statistics of civil mediation cases published by the Court in Judiciary Yearly Report each year since then. Of the two methods of mediation commencement as the Act laid down, mediation by application and mediation by referral, the number of the former cases is much lower than the latter: about 10% of total mediation cases are newly filed voluntarily by the people each year. On the other hand, most cases are mediations referred by the court where a litigation case is pending. The reason of the small number of application cases seems to be that Korean people are reluctant to use the mediation process provided by the state, especially the court, which is regarded as a power organ rendering compulsory decisions, not as a familiar mediator who helps people resolve their disputes. Actually this phenomenon might not be specific to Korea, but rather more universal. The rate of amicable settlement in mediation process is astonishingly high: about 70% of cases are concluded by an agreement between the disputants. The main factor of the high rate, however, has turned out to be those mediation cases handled by the court judges themselves who are in charge of the litigation process, rather than the cases handled by mediation commissions composed of practicing lawyers and other professionals. The disputants seem to be more compliant to judges, who have authoritative aura and will anyhow render a final court decision when the mediation process fails to reach an agreement. Above all, judges seem to try to get an agreement between plaintiff and defendant even in the litigation process and then refer to the mediation process those cases highly probable to be settled. Judges are acting as unofficial mediators in court cases even after thirty years when Linda Lewis observed a similar practice in Korean courts. One of long-term tasks Korea has to solve is to encourage mediation processes in civil society rather than state-centered mediation systems as currently operating.