민사조정법상 진술의 원용제한 규정에 대한 미국법제에서의 시사점

The system for disallowing the statement made in mediation proceedings to be used in the subsequent lawsuit proceedings is the foundation of mediation system. Its related provision has already been made in the US through Article 408, Federal Rules of Evidence enacted in 1975. In addition, for the purpose of alleviating the inconsistency in the scope and limit of confidentiality enacted or formed through precedents at the federal & state level on mediation proceedings, Uniform Mediation Act was enacted for seeking its uniformity since the 1960s. In light of such trend, it can be said that the provision in our country of disallowing only the statement made by the party or any person interested in to be used in civil procedure, which is stipulated in Article 23, Judicial Conciliation of Civil Disputes Act, is an advanced legislation. Additionally, in the Judicial Conciliation of Civil Disputes Act that includes a system for allowing the court of a suit to mediate by itself, there is the issue of causing 'confusion of role' not only for the judge in charge of the case in litigation but also for the parties by not separating the lawsuit proceedings and mediation proceedings. In addition, there is the issue for the party in having to submit to the completion of conciliation or the decision instead of conciliation made by the court of the suit in spite of being dissatisfied by such action upon receiving psychological pressure that such action is compulsory. The biggest reason for causing such situation in the case of the court of the suit directly mediating is from the fact that the judge of the court of the suit, who will be making the judgement on the lawsuit case, ends up learning about the statements made in the mediation proceedings as they are all disclosed to the judge. Although increasing the success rate of meditation is to be desired, using such method is far from the satisfying win-win settlement sought by the mediation proceedings. Furthermore, it interferes with the uniform interpretation among the stipulations in the Judicial Conciliation of Civil Disputes Act even though it might alleviate the psychological burden of the court. Accordingly, the court must refrain as much as possible from using the court of a suit mediation system while striving to make its settlement through the Recommendation for Compromise by Ruling introduced in Civil Procedure Act or increasing the effectiveness of the 'not be used' provision of the statement by allowing the parties to choose the organ of conciliation so that the parties of the mediation or any person interested in can approach the mediation with open mind for satisfying discussion and compromise. Furthermore, there is a need to remove the court of a suit mediation system stipulated in the Judicial Conciliation of Civil Disputes Act on the argument of legislation level as well as clearly and specifically define the scope and limit of the 'not be used' of statement by referencing Article 408, Federal Rules of Evidence or the related provisions in Uniform Mediation Act.