In Korea, if a contract says binding arbitration, can we still pursue mediation first and how would that affect enforceability?

Dear Sir/Madam,

An arbitration clause governed by Korean law mainly prevents the parties from taking their dispute to the ordinary courts, but it does not in itself stop them from negotiating or using voluntary mediation to try to settle. Commentary on ADR in Korea and institutional materials note that mediation and conciliation are actively encouraged, and many commercial disputes settle through mediation before or during arbitration.​

The Korean Commercial Arbitration Board (KCAB) domestic arbitration rules even state that, if the parties agree in writing, they may request mediation of all or part of their dispute at any time during the arbitral proceedings, which shows that mediation and arbitration are treated as compatible processes rather than alternatives that exclude each other. In practice, this means you and the other party can agree (in a short written email or addendum) to try mediation first, without giving up your right to proceed to arbitration if no settlement is reached.​

Effect on enforceability of arbitration
The Korean Arbitration Act (which follows the UNCITRAL Model Law) gives properly conducted arbitrations seated in Korea a clear legal framework, and awards can be recognized and enforced by Korean courts much like court judgments. Using mediation before or alongside arbitration does not by itself affect the court’s power to recognize and enforce an arbitral award, as long as the arbitration is conducted in accordance with the arbitration agreement and the Act.​

Multi‑tier clauses (negotiation/mediation followed by arbitration) are common in contracts involving Korean parties, and international bar guidance on Korea indicates that pre‑arbitration negotiation or mediation obligations are generally not treated as strict jurisdictional preconditions that would invalidate an arbitration if the sequence is not perfectly followed. On the other hand, where a dispute resolution clause offers a choice between litigation/mediation and arbitration without a clear priority, Korean courts have sometimes found the clause too ambiguous to be enforced as an arbitration agreement, which is why it is important that your clause clearly states that arbitration remains the final binding step.​

If mediation succeeds and you sign a settlement agreement, that document is normally enforceable as a contract; for cross‑border cases, the new KCAB International Mediation Rules allow the institution to issue an attestation that a settlement resulted from mediation, which is designed to support enforcement under the Singapore Convention on Mediation. If mediation fails, you simply move on to arbitration in accordance with the clause, and neither the institution nor the arbitral tribunal will usually treat your attempt at mediation as a waiver of the arbitration agreement.

Practical steps, costs and typical timelines in Korea
For mediation:

If the parties agree to use KCAB International Mediation Rules, one side files a brief Request for Mediation with KCAB (by email or other means) and pays a filing fee (around USD 750 under the 2024 Rules). KCAB then appoints a mediator (or confirms a mediator chosen by the parties), and if the parties cannot agree, KCAB will select a mediator, typically within about 15 days of commencement.​

The mediation schedule is flexible and often conducted online; KCAB guidance and practitioner reports note that many mediations conclude in a few sessions over weeks or a few months, and the overall cost (filing fee, administrative fee, mediator’s fee) is usually significantly lower than a full arbitration.​

For arbitration (assuming a KCAB or Korea‑seated arbitration clause):

The claimant files a Request for Arbitration with the designated institution (often KCAB) and pays a non‑refundable filing fee; for KCAB domestic cases this is around KRW 1,100,000, and for international cases the filing fee and administrative fees depend on the amount in dispute under KCAB’s published schedules. The institution then asks both parties to deposit an advance on costs (arbitrators’ fees and administrative fees) based on the amount claimed.​

After the arbitral tribunal is appointed, the case proceeds with written submissions and, if needed, a hearing; KCAB International reports that proceedings are typically decided within about 12 months, while broader surveys of arbitration in Korea indicate a usual range of roughly 12–18 months, with expedited procedures allowing smaller or simpler cases to finish in as little as six months. Once the award is issued, enforcement in Korea requires an application to a Korean court under the Arbitration Act and the New York Convention, after which the award can be enforced against assets like a court judgment.​

Further help and WhatsApp consultation
This explanation is general information based on publicly available Korean and international arbitration materials and is not a substitute for advice from a lawyer qualified in South Korea who has reviewed your exact contract and documents. For a final decision on strategy, it is strongly recommended to consult a Korean attorney or a specialist firm familiar with KCAB and Korean arbitration practice.​

With respect, if you would like to discuss the wording of your clause and practical options (for example, how to propose mediation, what to expect in KCAB procedures, and what questions to ask a Korean lawyer), you are very welcome to contact me by WhatsApp for low‑cost written consultation. There, the contract text can be reviewed together, your position can be explained in clear English, and a step‑by‑step plan can be prepared for moving from negotiation/mediation to arbitration only if truly necessary.