Whenever I have personally represented clients in mediation proceedings as an attorney, the outcome has, in nearly every case, been successful. In the more than a decade since I became an attorney, I have never once encountered a problem arising out of a mediation proceeding. Based on this experience, I have long regarded mediation as a relatively straightforward and manageable process. Recently, however, I came to realize that this view was, in fact, entirely my own.
Why Mediation Is Undervalued in Korea
Most
attorneys in Korea are not particularly fond of mediation, and tend to prefer
resolving disputes through a court judgment rather than through mediation. This
is so even though, from the client's perspective, resolving a dispute through
mediation is often more advantageous. I have come to learn that some attorneys,
for this reason, either fail to appear when a mediation date is scheduled, or
advise their clients that mediation is disadvantageous and urge them to see the
case through to judgment instead.
In
my own view, however, mediation is a far more advantageous procedure for the
parties involved, for the following reasons. First, it brings the case to a
swift conclusion. Second, once mediation is successfully concluded, the client
can promptly recover payment from the opposing party. Third, a mediation
settlement includes a clause barring further civil or criminal proceedings,
thereby preventing future disputes from arising.
Because
of these clear advantages, I actively encourage my clients — even in cases
where litigation has already been filed — to resolve their disputes through
mediation whenever the opportunity arises, believing that doing so produces a
far more favorable and desirable outcome for the parties. That said, mediation
is a process that presupposes a degree of compromise, so I do not necessarily
recommend it to clients who have made clear that they are unwilling to give up
even a single won. To be candid, from an attorney's standpoint, there are
certain respects in which foregoing mediation actually works to the attorney's
advantage.
The
reasons mediation tends not to be favored from an attorney's perspective are as
follows. First, it reduces opportunities to be retained for further
proceedings. If a judgment is rendered granting partial victory or defeat,
there is a chance of persuading the client to retain the attorney for an
appeal; once a case is resolved through mediation, however, that opportunity
disappears. Second, in cases with a strong prospect of complete victory, a
substantial contingency fee may be expected, but if the case is instead
resolved through mediation, the contingency fee is typically reduced, which
works against the attorney's interest. Third, unlike judgment proceedings,
mediation requires a process of negotiation with the opposing party and, unlike
an ordinary hearing date, can sometimes take one to two hours, making it a
comparatively inefficient use of the attorney's time.
For
these reasons, relatively few attorneys actively recommend mediation to their
clients, and I have come to realize that I belong to the comparatively small
group of attorneys who do.
A Cautionary Case: Mediation Without Counsel
Recently,
however, I encountered the following case. Because the amount in controversy
was not large, I advised a client seeking consultation to make use of the
mediation committee within a national administrative agency. The client
attended the mediation proceeding in person, without retaining counsel, and
ultimately received a mediation decision that was somewhat unfavorable.
Although
a more advantageous resolution had been available, the client was persuaded by
the mediation committee members and ended up agreeing to terms that were, in
fact, disadvantageous. To make matters worse, the written mediation decision
contained a number of typographical errors, making it difficult even to pursue
compulsory execution on the basis of that decision. As a result, a separate
correction procedure had to be undertaken, giving rise to a number of
additional complications.
In
my own view, the root cause of the problem was the client's decision to forgo
retaining counsel in order to save a modest sum in fees. In the end, the client
expended an unnecessary amount of personal time and energy in an effort to save
that relatively small cost. Of course, if one has ample time to spare, choosing
to take on that kind of experience firsthand is one option; but I believe it is
far more sensible to devote one's limited time and resources to the areas in
which one is best equipped to perform.
In
my own experience representing clients in mediation proceedings as an attorney,
this kind of problem has never once arisen, because carefully reviewing the
content of a mediation decision before it is finalized is a standard part of
the process, leaving no room for errors such as typographical mistakes to slip
through. By contrast, a number of problems were found in the decision received
by a party who attended in person without counsel — confirming once again that
parties often find it difficult to scrutinize their own cases carefully on
their own.
Why You Should Never Attend Mediation Alone
For
this reason, I would like to emphasize the following point — both to Koreans
and to foreign nationals who plan to take part in mediation proceedings in
Korea. Please do not attend a mediation proceeding alone simply to save on
costs; I strongly encourage you to retain counsel and appear together. Doing so
may, in the end, actually prove to be the more cost-effective choice. Please do
not go it alone.
If
you attend on your own, you run the risk of receiving an unfavorable mediation
decision, and you may even end up with a written decision that cannot be
enforced. I have also recently come to learn something new: at the mediation
committees operating within national administrative agencies, the staff members
responsible for drafting the written mediation decisions are not necessarily
held to the same standard of competence as their counterparts at the courts. In
court-annexed mediation, a mediation committee member prepares a draft that is
then reviewed by a judge, whereas at administrative-agency mediation
committees, the staff members involved often lack a comparable level of review
capability, which not infrequently results in significant typographical errors.
In such cases, the decision may prove impossible to enforce, requiring a
separate correction procedure and giving rise to a range of additional
complications.
For these reasons, I strongly recommend that, even at some additional expense, you retain counsel to accompany you in mediation proceedings in Korea.
Copyright ⓒ 2026 Mecklin Kim. All rights reserved.
