“诉源治理”视角下律师权威的塑造

Shaping of Lawyer Authority from the Perspective of“Litigation Source Governance”

诉源治理的目的是实现法治建设和人权保障。律师参与非诉讼纠纷化解是实现诉源治理的重要方式,但实际效果不甚理想。重要原因是律师调解缺乏权威。律师调解的权威获取和生成与纠纷当事人对律师调解制度及调解律师的信任有关。具体机制包括律师调解组织和律师本人的社会声望(特别是道德品格、专业技能)、嵌入社会交往网络获取地方性知识及通过组织嵌入获得正式国家机构权威支持。现实中存在多种障碍因素妨碍上述机制的作用发挥。充分利用纠纷方的工具理性能力和心理,律师调解市场化扶植品牌调解机构、“金牌”调解律师等或可有助于实现律师调解制度和调解律师的权威生成。

The purpose of Litigation Source Governance is to build the rule of law and protect human rights.Lawyers'participation in resolving non-litigation disputes is an important way to achieve litigation source governance,but the actual effect is not satisfactory.An important reason is that lawyers lack authority in mediation.The acquisition and generation of the authority of lawyer mediation is related to disputants'trust in the system of lawyer mediation and the mediation lawyers.The specific mechanisms cover the social reputation(especially moral character and professional skills)of the mediating lawyer organization and the lawyer himself or herself,the local knowledge obtained by embedding into the social communication network and the authority support of the formal state institution obtained by the embedded organization.In reality,various obstacles hinder the function of the above mechanism.Making full use of the instrumental rational ability and mentality of the disputing party,marketization of lawyer mediation fostering brand mediation agencies and“gold medal”mediation lawyers may contribute to the realization of the lawyer mediation system and the generation of the authority of the mediation lawyer.