Sun Ju Jeong, Guaranteeing the Right to Access to Courts and ADR: Focusing on Mediation and Arbitration, The Justice, Vol. 170, No. 3 (2019), pp. 553-585.
<Abstract>
This paper examined the relationship between the constitutional right to access to courts (“Justizgewährungsanspruch”) and the private dispute resolution process, such as mediation or arbitration. In conclusion, it is difficult to say that the right to access to courts is directly applied to mediation or arbitration, which is a dispute resolution procedure by private individuals. However, the core concept of procedural fundamental rights should be followed here. Firstly, to ensure extensive access to the courts, compulsory mediation or settlement of the parties without voluntary or agreement of the parties must be abolished. Secondly, for a fair trial, the challenge to the mediator should be expressly stipulated in the law and the expertise of the mediator in the mediation system itself should be strengthened. This requires a specialized and legally regulated training program for the mediator. Thirdly, for the uniformity and predictability of various processes, it is necessary to present a model procedure, so the ADR Procedure Act should be legislated. Furthermore, in order to ensure the principle of closed hearing in the mediation and arbitration, participants in the process, including the parties, should be subject to confidentiality and sanctions against the violation should be explicitly stipulated in the law. For a better and desirable conflict resolution culture, dispute resolution through agreement of the parties should be a priority than a trial. However, these are also dispute solving procedures, and therefore the due process of law must be followed as in the trials, unless there are any special circumstance.
<Keywords>
Constitutional right to access to courts, Procedural fundamental rights, Arbitration, Compulsory mediation, Expertise of the mediator, ADR Procedure Act, Confidentiality and sanctions
Sun Ju Jeong, Guaranteeing the Right to Access to Courts and ADR: Focusing on Mediation and Arbitration, The Justice, Vol. 170, No. 3 (2019), pp. 553-585.
<Abstract>
This paper examined the relationship between the constitutional right to access to courts (“Justizgewährungsanspruch”) and the private dispute resolution process, such as mediation or arbitration. In conclusion, it is difficult to say that the right to access to courts is directly applied to mediation or arbitration, which is a dispute resolution procedure by private individuals. However, the core concept of procedural fundamental rights should be followed here. Firstly, to ensure extensive access to the courts, compulsory mediation or settlement of the parties without voluntary or agreement of the parties must be abolished. Secondly, for a fair trial, the challenge to the mediator should be expressly stipulated in the law and the expertise of the mediator in the mediation system itself should be strengthened. This requires a specialized and legally regulated training program for the mediator. Thirdly, for the uniformity and predictability of various processes, it is necessary to present a model procedure, so the ADR Procedure Act should be legislated. Furthermore, in order to ensure the principle of closed hearing in the mediation and arbitration, participants in the process, including the parties, should be subject to confidentiality and sanctions against the violation should be explicitly stipulated in the law. For a better and desirable conflict resolution culture, dispute resolution through agreement of the parties should be a priority than a trial. However, these are also dispute solving procedures, and therefore the due process of law must be followed as in the trials, unless there are any special circumstance.
<Keywords>
Constitutional right to access to courts, Procedural fundamental rights, Arbitration, Compulsory mediation, Expertise of the mediator, ADR Procedure Act, Confidentiality and sanctions