Legal Challenges in Uniformly Regulating Administrative Mediation in Korea

There is no overarching framework for the regulation of administrative mediation in Korea. The ever–growing number of mediation bodies is increasingly creating a dizzying landscape that defies coherent and uniform regulation, which in turn is leading to a considerable degree of unforeseeability and uncertainty. Admittedly the path towards introducing a legislative act that can uniformly govern administrative mediation is full of challenges. However many of these challenges may be reduced significantly by limiting the scope of application of uniform legislation, by excluding court-annexed mediation, and preferably also private mediation. By solely targeting the regulation of administrative mediation, the legislative act can focus on the special nature and particularities of administrative mediation in Korea. Also, whatever approach is taken towards the uniform regulation of administrative mediation, the key to success will lie in legislative minimalism. Legislation should almost exclusively focus on preserving the voluntary nature and flexibility of the institution of mediation. With the exception of a few essentials, everything else may and should be separately regulated by the relevant legislative acts that also constitute the basis of the individual administrative mediation bodies. Aside from this, mediation should maintain its defining trait as a consensus-based method of dispute resolution. Elements that run counter to the voluntariness of mediation should be reduced to a minimum. The initiation and completion of mediation should in principle be the result of the explicit expression of the parties’ intention to that effect, with possibly recognizing a slight compromise in respect of initiating mediation. Also, it is desirable to recognize the legal effect of a mediation agreement as a settlement agreement (compromise) under the Civil Code, and not a settlement in court. Based on this, a mediation agreement should as a rule be unenforceable, unless there is explicit agreement by the disputing parties as to its enforceability.