Hello. I am attorney Shin Jun-seon of Cheongchul Law Firm.

Many people preparing for a divorce lawsuit expect that trial proceedings will begin immediately once they file the complaint. In reality, however, in most cases they first receive a "Notice of Mediation Date" from the court. In this process, quite a few people appear on the date without properly understanding what mediation is, why they must go through it, and what legal effect it has, or refuse it without much review.

Today, we will look at the legal structure and practical significance of the mediation procedure that you must know when proceeding with a divorce lawsuit, as well as the effect of a mediation record and how to use it strategically.

[Question] What is the mediation procedure in a divorce lawsuit, and what legal significance does it have?

[Answer]

1. The concept of mandatory pre-litigation mediation and its legal basis

Article 50(1) of the Family Litigation Act provides that for family litigation cases in categories Na and Da, including judicial divorce, and family non-litigation cases in category Ma, a mediation application must be made first before filing the main lawsuit. This is called the principle of mandatory pre-litigation mediation.

Even if a complaint is filed directly without a mediation application, the court will refer the case to mediation ex officio, so in practice the first gateway of a divorce case is mediation, not trial. However, this principle applies only to cases in which an agreement between the parties is conceivable at least conceptually, and does not apply to types of cases that parties cannot dispose of at will, such as nullity of marriage (category Ga) or adult guardianship (category Ra).

That said, if the other party's address is completely unknown so that service by public notice is unavoidable, or if the court determines that the conflict between the parties is so severe that successful mediation is unlikely, litigation procedures begin immediately without mediation (proviso to paragraph 2 of the same Article).

For reference, the Supreme Court does not view mandatory pre-litigation mediation as a strict litigation requirement, and even if a court, at its discretion, omits mediation and renders a judgment, that judgment does not become invalid.

2. Effect of the mediation record

If mediation is established and the agreed terms are entered in the record, that record has the same effect as a final and conclusive judgment (Family Litigation Act Article 59(2), Civil Procedure Act Article 220). This is fundamentally different in nature from a simple "settlement agreement," and if the other party fails to pay child support or perform property division, you may immediately apply for compulsory execution using the mediation record itself as an enforceable title, without filing a separate lawsuit.

The Supreme Court has also consistently held that because a mediation record has the same res judicata effect as a final and conclusive judgment, its contents cannot be disputed unless grounds for absolute nullity exist or it is revoked through a quasi-retrial procedure. In this way, once terms are entered in a mediation record, they are practically impossible to reverse, so careful review is required as to whether there is both intent and practical benefit in concluding the matter through mediation.

3. Flow of the mediation procedure

When a complaint or mediation application is filed, the court may, as necessary, order a family court investigator to conduct a factual investigation. In this investigation, the background of the marriage, causes of breakdown, status of assets, and children's caregiving environment are comprehensively identified, and the results may have a substantial impact on later determinations regarding property division and custody.

After the family investigation is completed, a mediation date is set, and both sides' opinions are heard in private before a mediation committee composed of a judge and mediation members. If an agreement is reached there on custody, child support, property division, alimony, and related matters, mediation is established; if no agreement is reached, the case proceeds to litigation.

4. Need for a strategic approach to mediation

There can be a significant difference in outcomes between treating mediation merely as a "procedure to go through" and using it as a "strategic opportunity." During mediation, you can identify what position the other side is taking on property division, what logic they are building regarding custody, and how much evidence they have secured. If mediation is established, the case can be concluded quickly without a judgment; even if it fails, the other side's positions identified in this process can be used to formulate strategy at the litigation stage.

Also, in divorce cases, detailed design of parenting arrangements, visitation schedules, and the timing and method of property transfer are often more beneficial to both parties when flexibly coordinated in mediation than when receiving a uniform conclusion by judgment. In terms of time and cost as well, while a trial on the merits may take from six months to more than a year, mediation can be completed within a few sessions, making it efficient.

5. Checklist before appearing on the mediation date

Since a mediation record has the same effect as a final and conclusive judgment, sufficient legal review must be conducted in advance of the mediation date. Before entering mediation, you should organize matters such as the reference date and scope of property division, whether items qualifying as separate property exist, the basis and provability of an alimony claim, and whether the child support guidelines apply. You should avoid, on the day of mediation, agreeing without sufficient review due to heightened emotions or, conversely, emotionally rejecting the other side's proposal, as either may lead to unfavorable results. In addition, because mediation may break down at any time, it is advisable to proceed while also preparing an evidentiary plan for litigation.

6. Conclusion

The mediation procedure in a divorce lawsuit is a key stage that determines the direction and outcome of the case. Given that a mediation record has the same effect as a final and conclusive judgment, it is accurate to understand mediation as a decision-making process carrying weight equivalent to a judgment.

Divorce is not simply a matter of winning or losing, but of on what terms to settle the relationship. Accurately understanding the structure of the case and preparing strategically from the mediation stage can be the most realistic starting point for changing the final outcome.