我国律师调解制度中的角色冲突及其化解路径

The Role Conflict of Chinese Lawyer Mediation System and Its Resolution

我国律师调解制度的本质是律师作为调解员参与到各类调解中,是律师与调解相结合的产物。因此,在该制度中律师混合着“代理人角色”与“调解员角色”,而这两种角色在地位、理念、行为规范、行为模式等方面存在冲突。此角色冲突将不可避免地导致实践中存在律师调解员中立地位易受影响、难以适应调解工作、存在道德风险、参与调解动力不足等问题。从比较法视角看,建立和培育专门从事调解的律师事务所与律师是化解角色冲突的关键,但其目前在我国仍面临着律师行业与商事调解欠发达的困境,因而现阶段可主要从制度完善层面缓解因律师调解角色冲突产生的实践问题。

The essence of the lawyer’s mediation system in China is that lawyers participate in various mediations as mediators,which is the product of the combination of lawyers and mediation. Therefore,in this system,lawyers mix “agent role” and “media role”,and these two roles conflict in status,concept,behavioral norms and behavior patterns. This role conflict will inevitably lead to some problems in practice,such as lawyers' neutral position is easily affected,it is difficult to adapt to mediation,there is moral hazard,and there is insufficient motivation to participate in mediation. From the perspective of comparative law,cultivating law firms and lawyers specializing in mediation is the key to resolving this role conflict. However,it is still faced with the dilemma that the lawyer industry and commercial mediation are underdeveloped in China. Therefore,at the present stage,the practical problems arising from the conflict of lawyers' mediation roles can be alleviated mainly from the perspective of system improvement.