Criticizing Judge’s Participation in Mediation and Conciliation in Poland and Korea

As we recognized, our ancestors had used traditional methods of mediation or arbitration by adopting the third neutral party for resolving disputes for a long time. Furthermore, current legal authorities, such as in Poland and Korea, also have established mediation process in order to provide an expedited resolution. The current court-connected mediation programs might also provide the speedy finality of complicated proceedings because these programs in Poland and Korea to be operated by the same neutral, that might be similar with the both processes of mediation and arbitration. Authors reconsider the Polish and Korean judge’s role as a mediator or conciliator. According to Polish and Korean legal provisions, the judge can have the authority to review the mediation cases in the same location. The question is whether the judge who plays role of mediator or conciliator violates ethical rules like trust and independence. The paper will reveal the possible conflict of interest between the judge (who is the mediator or conciliator) and the parties during the mediation or conciliation process and propose the probable solutions. In one glance, it could be a strong point of double aspects of judge-like mediator when the parties could not reach a consensual agreement. Based on the judge-like mediator, as call as Med-Arbitrator, same neutral process could save time and effort of both parties by an expedited process. However, it might provide significant problems for both the judge-like mediator and parties, such as confidentiality, impartiality and detrimental self-determination. Therefore, the mediator should not take a role of judge-like position when the parties could not reach a mutual agreement. For example, the judge-like mediator might face the inherent conflicting interest based on the limitation of mediation program, such as finality and confidentiality, detrimental candor and good-faith of the involving parties.