论我国法院附设律师调解制度的困境与出路

The Dilemma and Outlet of the Mediation System of Lawyers Attached to the Court in China

律师调解制度作为一种独立纠纷解决机制,最大优势在于律师调解员具有专业的法律知识和丰富的诉讼经验,能够以自身优势弥补诉讼及其他纠纷解决方式的局限性。法院附设律师调解在试点工作中尚存在诸多问题,主要体现在,各主体对法院附设律师调解的认识不一,律师调解的公信力与中立性遭受质疑,律师调解员与法官之间利益勾兑现象严重。法院附设律师调解工作未能突出其专业化优势及律师参与调解积极性不高的要因是律师传统角色、传统业务与调解存在冲突、法院附设律师调解实践模糊了其定位、法院附设律师调解进入机制与退出机制不足,并且未建立合理的收费机制。针对上述问题,应当明确法院附设律师调解定位、建立法院附设律师调解激励机制、建立法官与律师之间的利益保护屏障、完善法院律师调解员的进入与退出机制,进一步完善法院附设律师调解工作制度。

As an independent dispute resolution mechanism,the biggest advantage of lawyer mediation system is that the lawyer mediator has professional legal knowledge and rich litigation experience,and can make up for the limitations of litigation and other dispute resolution methods with his own advantages.However,there are still many problems in the pilot work of court-attached lawyer mediation,which is mainly reflected in the fact that the main body has different understanding of court-attached lawyer mediation,and the credibility and neutrality of lawyer mediation are questioned.The blending of interests between lawyer mediators and judges is serious.The lawyer mediation work attached to the court failed to highlight its professional advantages and the low enthusiasm of lawyers to participate in mediation was due to the transmission of lawyers.There is a conflict between the traditional business and mediation.The practice of court-attached lawyer mediation blurs its positioning,and the courtattached lawyer mediation entry mechanism and exit mechanism are insufficient,and no reasonable charging mechanism is established.In order to solve the above problems,we should make clear the position of court-attached lawyer mediation,establish the incentive mechanism of court-attached lawyer mediation,establish the barrier of interest protection between judges and lawyers,and improve the entry and exit mechanism of court lawyer mediators.In order to further improve the court attached to the lawyer mediation system.