The subject of this article is the mediation in the administrative litigation. The comparative approach with laws of Germany, U.K. and France is adopted, and their implications to Korean law are explored. It is true that over 10% of administrative litigations in Korea is now resolved by judges' mediation. Nevertheless, the mediation in the administrative litigation is not legal but de facto device, and its legal effect or limit is not fully established, because of lack of clear legal bases. Therefore, such a mediation has not been sufficiently vitalized.
In fact, administrative law disputes could be settled by ADRs such as arbitration, settlement and so on other than mediation, or before taking legal action, or by the mediation outside litigation procedure. However, the reasons why this paper pays particular attention to the mediation in the administrative litigation are as follows. First, as legal principles like the rule of law, the protection of the third party's or public interests, and administrative procedure should be observed in the administrative law disputes unlike private law disputes, the judge needs to play the role of a mediator even though the parties agree about their disputes. Second, in general the parties try mediation after the commencement of proceedings, for there is time limit in the administrative litigation.
The comparative study with Germany, U.K. and France makes sure that there is a recent move to promote mediation in the three countries, although the extent of vitalization is different according to each country. The actual distinction between them is that while the judge's role as a mediator is affirmatively evaluated in Germany and France where the procedure is inqusitorial, the U.K.'s judge is not allowed to act as a mediator but can only provide guidelines because the procedure is adversarial in U.K.
In conclusion, comparative lessons learned from three experiences are as follows. First, it is suggested that the legal basis of mediation could be found in the judge's general powers such as the right to request elucidation, or recommendation of compromise. Second, the judge who does not preside over a particular case may become a mediator on the case like the German judge-mediator. Third, the mediation may be classified by the test of the effects of the agreement reached by mediation as ① agreement without legal binding force(a gentleman's agreement), ② agreement having the same legal effect as a contract ③ agreement having the same legal effect as a judicial decision, and the parties can choose among them.