调解程序中的律师:功能定位及障碍消减

Lawyers in Mediation:the Orientation of Their Function and the Elimination of the Obstacles

律师职业伦理以利他性为中心。调解程序中律师的使命则应致力于向当事人提供法律信息,以利于当事人而不是代替当事人作出正确的决定,促进当事人自治的实现。但律师自身的利益诉求和职业惯性有可能成为承担这一使命的障碍。因此,应该建立律师参与调解的激励与约束机制,包括将法律援助引入调解程序、改革律师收费制度、建立相关费用的分散化机制等,以保障当事人接近律师的权利。此外,律师还可以通过直接担任调解员和参与律师的和解制度等方式促进合意的纠纷解决。

It is the major point of the ethics for the lawyers to benefit others.The mission of the lawyers in the mediation process is to facilitate clients by providing legal information for them,not to make the right decisions by replacing the clients to promote the realization of party autonomy.But the pursuing of their own interests and career inertia may become an obstacle for the lawyers to undertake this mission.Therefore,we should set up an incentive and binding mechanism for the lawyers to take part in the mediation,including the introduction of the legal aid into the mediation process,the reform of the lawyer fee system,and the establishment of relevant mechanisms for the decentralization of the cost.In addition,the lawyers can promote the consensual dispute resolution by acting as mediators and participating in the reconciliation process by the lawyers.