Research On Lawyer Mediation System

For a long time,mediation has constituted an important measure to resolve conflicts and disputes and maintain social stability in New China.However,its outstanding shortcomings of flexibility and lack of standardization have also been criticized.In order to solve this problem,in September 2017,the Ministry of justice of the Supreme People's Court issued the opinions on the pilot work of lawyer mediation,with a view to rectifying the general imbalance of flexibility and standardization in China's mediation.In this context,the practice of court attached lawyer mediation is booming.However,the vigorous development of lawyer mediation also faces the same dilemma of other mediation types: on the one hand,the lawyer mediation needs standardized rigid binding force to achieve fair and just settlement of social conflicts and disputes;on the other hand,in the face of complex case mediation,the lawyer mediation system needs to have the characteristics of flexible disposal according to local conditions.This kind of contradictory social demand will inevitably cause the internal logic tension of the lawyer mediation system.This paper holds that as an alternative way of dispute resolution,the lawyer mediation system needs to achieve the dialectical unity and dynamic balance between flexibility and standardization,so as to ensure the fairness and standardization of dispute resolution without compromising the convenience and efficiency of lawyer mediation.Flexibility and flexibility are the basic characteristics of mediation different from court trial,and also the prominent advantages.The general promotion of lawyer mediation is not simply to negate the judicial tradition that China's mediation has long attached great importance to the flexibility of dispute resolution,but to achieve a reasonable balance between the standardization and flexibility of mediation.Compared with people's mediation and administrative mediation,lawyer's mediation is more professional and neutral,which naturally has the trend of standardization.On the other hand,compared with more formal court mediation,lawyer mediation is relatively flexible in terms of personnel structure,mediation process,mediation agreement and so on.In a word,in a whole sense,a more complete legal knowledge reserve is the premise guarantee and theoretical basis for the lawyer mediators to rectify the imbalance of normative flexibility.However,despite the theoretical feasibility of rectifying the deviation,the realpractice of lawyer mediation is not taken for granted,but faces the institutional defects of returning to the mediation pattern of "more flexibility" : first,the current promotion of lawyer mediation relies excessively on the support of the court system.The establishment of the lawyer mediation studio attached to the court has become a double-edged sword for the long-term sustainable development of the lawyer mediation system.Secondly,the time node which is in the initial exploration stage makes the lawyer mediation not only lively,but also prone to mistakes.Finally,the long-term absence of effective supervision mechanism has become a key obstacle to the standardized development of lawyer mediation system.Therefore,first of all,we should carefully summarize the practical experience and improve the norms of mediation procedures;second,we should attach great importance to the positive radiation of court trial to avoid the negative impact of judicial administration;finally,we should improve the post mediation evaluation mechanism,connect with the lawyer market service mechanism,and guide the lawyer mediation system to pay attention to both standardization and the balanced development of flexibility.