Difficulties And Breakthroughs In The Development Of Lawyer Mediation In China

Lawyer mediation in our country rose at the beginning of this century.Over the past ten years,with the participation of judicial organs,administrative organs and lawyers' associations,three different modes of development have been formed,which have been summarized by scholars as court-led,administrative-led and lawyer-led.Based on the analysis of the current situation of different development modes,this paper concludes that the lack of independence in the operation of the system and the absence of incentive mechanism are two major difficulties hindering the further development of lawyer mediation in China.The autonomy principle of mediation shows that the party autonomy with the assistance of the third party is the essential form of mediation.It is not only the basis for the legitimization of mediation,but also the way to give full play to the advantages of mediation.Although in theory,the value of autonomy is the core pursuit of mediation system,in practice,mediation system has been placed in more diverse functional expectations,resulting in two different development paths of modern mediation in general.One is the judicial assistant mediation aiming at diverting the pressure of judicial dispute resolution,which is called the "judicial direction" of mediation development,and the specific operation mode matching it is called the "quasi-judicial mode";the other is to help the parties to the dispute to solve the dispute by themselves rather than by the national forces through the autonomy of the civil community,so as to achieve the goal of removing justice and reducing the country.The ideal goals of management,strengthening social autonomy and promoting interpersonal harmony are called "autonomy orientation" of mediation development.Its specific operation mode is called "market mode" because it mainly relies on market incentives and regulation mechanism.China's current mediation system presents a single "judicial orientation".The advantages of mediation itself are not fully utilized to meet the increasingly diversified needs of social dispute resolution.The emerging lawyer mediation is more suitable to take the autonomy orientation as its own development orientation because of its many characteristics.Under the self-determination orientation,lawyer mediation should enhance the independence of the system,carry out market-oriented operation,promote the professional development of lawyer mediation and carry out diversified innovations in mediation functions.In the specific system design,on the one hand,in order to enhance the independence of the system operation,lawyer mediation should take law firms as the main body of the system operation,and at the same time realize the professional and professional development of lawyer mediation through the business subdivision of law firms.On the other hand,market-oriented mediation operation can be realized according to the different nature of cases.Finally,the independent operation of lawyer mediation can be effectively prevented and controlled through supporting system construction such as quality control at the source,work supervision in the process and accountability in the result.