調整合意 成立의 決定要因에 관한 實證的 硏究 = Empirical study : critical factors in reaching mediation agreements

다국어 초록 (Multilingual Abstract)

Ⅰ. Preface
It is widely understood that the 21st century, with the development of information technology(IT) and the spread of networks, will be called a digital economy where information-driven business will be norm rather than the smokestack economy of the past. And the drastically changed world market is expected to generate even more commercial transactions across the world creating large numbers of legal disputes. Therefore, each country will attempt to develop ADR(Alternative Dispute Resolution) as an alternative to judicial proceedings in order to cope with not only the ever-increasing international commercial claims but also domestic legal disputes.
Taking this reality into account, this study begins with an exploration of mediation procedure as a way of helping the court faced with its overwhelming numbers of lawsuits. And also this study makes a theoretical comparison between ADR and mediation procedure, analyzing critical factors affecting the mediation agreement. Furthermore, it is designed to find ways for disputing parties to make better use of mediation and ensure fairness to the parties involved. It tries to enhance mediators' understanding of critical factors influencing the mediation agreement and their ability to handle commercial disputes in a more efficient way.
To make an empirical analysis of these factors, bibliographic research and questionnaire were used. This analysis will fill the gap between the theory and reality, and make possible the structured research on the factors.
Therefore, this study sets the model by which we can evaluate how the three critical factors(parties' inclination, mediators' characteristics, institutional features) affect the parties reaching a mediation agreement. Based on this analysis, a theoretical hypothesis was built and a questionnaire was made and distributed. During the course of this work, SPSSWIN 10.0 program was applied.
Ⅱ. Setting Research Model and Hypothesis Building
This study built a research model based on, among many other variables influencing mediation agreement, parties' inclination(achievement level, degree of hostility, negotiation style, decision-making power), mediators' characteristics(impartiality, expertise, capability to collect and analyze information, process management) and institutional features(third party's assistance, caucus, arrangement of the setting). It was also based on the model developed by Sawyer & Gueztknow, a research paper written by Prof. Koon-Jae Shin, relevant documents and experiments I have taken from the mediation proceedings in which I participated as a mediator. With this model, this study seeks to reveal which variables influence the mediation agreement.
Ⅲ. Empirical Analysis.
1. Target and Conduct of Survey
To enhance its credibility, this study conducted a survey, using a questionnaire, targeting people who have once received conciliation services at authorized conciliation institutes; the Korean Commercial Arbitration Board, the court's conciliation proceedings and other relevant organizations of its kind.
Based on this questionnaire, many variables influencing the mediation agreement and the resulting parties' satisfaction with the outcomes were analyzed.
Questionnaires were delivered by way of physical visit, mailing, Fax and E-mail. Physical visits(interview) were done 51 times, mailing 48, Fax and E-mail 54, totaling 153. Of these questionnaires, 98(64%) were collected and 9 were dismissed due to its insufficient response. Therefore, 89(58.1%) questionnaires were used in this analysis.
2. Analysis Method
Analysis Program SPSSWIN 10.0 was applied in this analysis.
First, cronbach's alpha was used to test the reliability of the questionnaire.
Second, factor analysis was conducted to examine the adequacy of its contents. Third, frequency analysis was used to illustrate the demographical distribution of participants. Fourth, to find the relationships between the influencing variables and the degree of parties' satisfaction, Correlation Anaylsis was introduced. Fifth, to show to what extent the variables(parties' inclination, mediators' characteristics and institutional features) affect the degree of parties' satisfaction with the mediation agreement, Regression Analysis was applied, with factors influencing the mediation agreement as an independent variable and the degree of parties' satisfaction as a subordinate. Finally, T-test analysis was used to verify the proposed hypothesis of this study. T-test was widely used to show the statistical similarity between the two groups.
3. Empirical Analysis
Measured by Cronbach's alpha regarding the credibility of the research, parties' inclination marked 0.8259, mediators' characteristics 0.8381 and institutional features 0.8205, showing a high amount of credibility for this research. And with regard to the adequacy test employing factor analysis, variables assessing the concept of independent factor were identified as the same variable.
And frequency analysis regarding variables which influence the mediation agreement, "difference between expected money and agreed payment" in marked 4.37, "patience" in mediators' characteristics 4.37 and "caucus's contribution to credibility development" in institutional features 0.8205.
On the other hand, "hostility" in parties' inclination marked 2.06, "interrupted communication" in 1.84 mediators' characteristics and "setting arrangement's contribution to the mediation agreement" in institutional features 1.98.
To evaluate the degree of involved parties' satisfaction with mediation outcome, 48 cases out of 89 which reached mediation agreement were selected as sample. And the degree satisfaction ranked 3.87 showing that mediation procedure participants appeared highly satisfied with the mediated outcome.
In terms of correlation analysis, it appeared that each independent variable has a certain connection with others. With regard to the correlation between each independent variable and the degree of satisfaction, 6 variables(negotiation stlye, impartiality, expertise, ability to collect and analyze information, caucus, setting arrangement) out of 11 showed statistical similarity. And in the Regression Analysis where the parties' inclination, mediators' characteristics and institutional features were regarded as independent variables and the degree of satisfaction with the mediation agreement regarded as subordinate, it appeared that negotiating style, impartiality, ability to collect and analyze information, caucus and setting arrangement were found to be factors influencing the degree of satisfaction.
According to the T-test which was conducted on the basis of 11 variables, 7 variables(achievement level, negotiating style, decision-making power, procedure managing ability, third party's assistance, caucus and setting arrangement) were revealed to have a statistical similarity and were adopted. By contrast, the remaining 4 variables(hostility, impartiality, expertise, ability to collect and analyze information) were dismissed due to their lack of statistical similarity.
Ⅳ. Conclusion
According to the above statistical analysis, achievement level, negotiating style, decision-making power, procedure managing ability, third party's assistance, caucus and setting arrangement were found to be the crucial variables influencing mediation agreement. Therefore, mediation institutes, especially mediators, should be aware of these variables and make best use of them in the course of mediation proceedings. Using the results of this analysis, mediators should also try to further enhance the use of mediation among the public.
This study had inherent limits due to the following reasons : Frist, because mediation is not widely used and there are only limited number of institutes in Korea, I look at only the people who have ever used the Korean Commercial Arbitration Board or the conciliation procedures of the court. So a more practical and diversified study targeting various institutions is greatly needed. Second, the analysis was conducted only on the disputing parties, excluding the mediators. Therefore, it is suggested to include mediators in the survey. Third, it was found that variables such as parties' inclination, mediators' characteristics and institutional features influence the mediation agreement. In another study, more research should be conducted on how these variables are interrelated to each other.
This study is believed to be noteworthy in that it paved the way for the development of a theory on the mediation system and analysis of diverse factors influencing mediation agreement at a time when there is no sufficient material on this subject.

목차 (Table of Contents)

• 第1章 序論 = 1
• 第1節 硏究目的 = 1
• 第2節 硏究의 方法및 範圍 = 4
• 第2章 理論的 考察과 先行硏究 = 6
• 第1節 代替的 紛爭解決制度 = 6
• 1. ADR의 歷史的 背景 = 6
• 2. ADR의 基本槪要 = 11
• 3. ADR의 類型 = 14
• 第2節 調整制度 = 31
• 1. 調整制度의 歷史的 背景 = 31
• 2. 調整制度의 基本槪要 = 33
• 3. 調整制度의 必要性 = 38
• 4. 調整과 秘密性 = 40
• 5. 調整人 = 44
• 6. 調整節次 = 61
• 第3節 先行硏究 = 70
• 1. 協商에 관한 硏究 = 70
• 2. 調整에 관한 硏究 = 77
• 第3章 硏究模型과 假說設定 = 81
• 第1節 硏究模型과 假說의 設定 = 81
• 1. 硏究模型 = 81
• 2. 硏究假說의 設定 = 83
• 第2節 變數選定및 分析方法 = 92
• 1. 變數의 選定 = 92
• 2. 標本設計와 對象 = 98
• 3. 統計分析方法 = 98
• 第4章 實證分析 = 100
• 第1節 資料調査와 標本對象의 一般的 特性 = 100
• 1. 調査內容과 資料蒐集 方法 = 100
• 2. 標本對象의 一般的 特性 = 101
• 第2節 信賴性과 妥當性의 檢證 = 106
• 1. 信賴性 檢證 = 106
• 2. 妥當性 檢證 = 109
• 3. 頻度分析 = 113
• 第3節 調整合意 成立의 決定要因分析 = 117
• 1. 相關關係分析 = 117
• 2. 回歸分析 = 124
• 3. 硏究假說의 檢證 = 126
• 第5章 結論 = 136
• < 참고문헌> = 139
• ABSTRACT = 144