Originally from Dispute Resolution Journal

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I.    THE CIVIL LAW IN EAST ASIA

Early resolution of disputes includes a continuum of informal negotiation, mediation, and the initial phases of multi-tiered dispute resolution processes.  The ultimate goal is, of course, the avoidance of more formal and adversarial processes such as arbitration or litigation.  In Korea, as is the trend world-wide, there is strong interest and increasing institutional (including executive and legislative bodies, as well as the courts) support for mediation. Yet, it can be said that mediation and multi-tiered dispute resolution in Korea, as is the case in much of Asia, is not being utilized to the extent it is in many Western countries. This article focuses particularly on the current frameworks for mediation – especially court-annexed mediation, the most prevalent form of mediation in Korea.  In addition, the limited use of multi-tiered dispute resolution clauses (also referred to as escalation clauses) in Korea is discussed.  Finally, the future of early dispute resolution, particularly mediation, is discussed along with suggestions for strengthening pre-arbitration/litigation processes in Korea.

II.    KOREAN CULTURE OF NEGOTIATION AND INFORMAL DISPUTE RESOLUTION

Korea is one of the most Confucian societies still existent in the world today, having derived its earliest methods for handling social interaction, including resolution of disputes, from Chinese Confucian philosophy.  As such, harmony and respect and even concession (and a concomitant sense of social hierarchy) are still cornerstones of Korean culture today.  These fundamental values also permeate the approaches prevalent in Korea toward dispute resolution, including efforts at early negotiation and informal mediation.  Face-saving and harmony-seeking are important in all levels of negotiation and mediation.  Indeed, it has been observed that Korean mediators are “concerned not only with establishing harmony and within-groups tranquility, but also saving face for all parties.”   Moreover, while it may be important to the parties that an assignment of blame is ultimately placed on one of the parties, there is also a priority placed on tolerance and forgiveness and an avoidance of escalating disputes.   Indeed, Korean Confucian tradition has long emphasized sympathy, shame, concession and reason, as well as a moral code that emphasized moral persuasion and reasoning over legal sanctions.