律师在调解中的角色分析

发布时间：2018-05-28 03:35

本文选题：律师调解 + 角色理论　；参考：《湘潭大学》2017年硕士论文

【摘要】：作为法律共同体的一员,律师在法律生活中扮演着多重角色。在调解过程中,律师站在不同的立场,扮演不同的角色,实施不同的行为与策略,将会带来不同的纠纷解决结果。当前的律师调解实践存在两种模式。一种是建立单独的律师调解机构,律师在其中以独立身份掌控着调解全过程,例如“青岛律师调解中心”;另一种是律师以个体身份内嵌到其他调解机构中,以共同合作的方式来主持调解,其典型代表是“深圳福田模式”。在调解中,法院、政府机关、纠纷当事人、律师事务所,以及律师皆是调解的参与主体。但是源于各个主体自身需求差异,其对律师在调解中的角色与作用的认识各不相同,期待不尽一致。律师在其主导或主持的调解中分别扮演着“法院受托者、政府合伙人、当事人的服务员、律师事务所的业务员,以及调解的组织者”这五种角色。这些角色在反映调解主体间需求差异的同时也给律师调解带来诸多角色问题。法律规范的不健全和调解当事人的立场波动使得律师在调解中缺乏明确的行为依据,造成律师调解的角色期待不明;人情关系的倾斜和制度约束给律师在调解中建立牢固的角色信任关系带来重重阻碍;司法资源稀缺情境下的民众与律师在调解观念上的鸿沟使得律师在角色认识上产生偏差;律师自身对调解的理解,政府、法院对律师身份及地位的限制使得律师常常遭遇角色选择上的冲突。因此运用“角色理论”分析律师在调解中的角色结构、功能和互动过程,辨明律师在调解中的角色关系,对构建有序的律师调解机制就有着重要意义。在律师调解机制的建立过程中需要注意两个方面,一是发挥律师协会对律师的管理培训职能,促使律师在调解中及时转换角色,厘清自身的角色定位;二是改善人文和经济环境,对律师参加调解给与更多的社会宽容和财政支持,在制度上设定好律师调解的权利边界,明确其角色期待。
[Abstract]:As a member of the legal community, lawyers play many roles in legal life. In the process of mediation, lawyers stand in different positions, play different roles and implement different behaviors and strategies, which will lead to different results of dispute resolution. There are two models in the practice of lawyer mediation. One is the establishment of a separate lawyer mediation agency, in which lawyers control the entire mediation process in an independent capacity, such as the Qingdao lawyers Mediation Center; the other is that lawyers are embedded in other mediation institutions as individuals. The typical representative of mediation is Shenzhen Futian Model. In mediation, courts, government agencies, parties to disputes, law firms, and lawyers are all involved in mediation. However, due to the different needs of different subjects, their understanding of the role and role of lawyers in mediation is different and their expectations are different. Lawyers play the roles of court trustee, government partner, waiter of client, clerk of law firm and organizer of mediation. These roles not only reflect the different needs of mediators, but also bring many problems to lawyer mediation. The imperfect legal norms and the fluctuation of the position of the mediating parties make the lawyers lack clear basis of conduct in the mediation, resulting in the role of lawyers in mediation is not clear; The inclination of the human relationship and the restriction of the system bring many obstacles to the lawyer to establish the solid trust relationship in the mediation, the gap between the public and the lawyer in the concept of mediation in the situation of scarce judicial resources makes the lawyer deviate in the understanding of the role. The lawyer's own understanding of mediation and the restriction of the lawyer's status and status by the government and the court make the lawyer often encounter conflict in the choice of his role. Therefore, it is of great significance to analyze the role structure, function and interactive process of lawyer in mediation by "role theory", and to distinguish the role relationship of lawyer in mediation, which is of great significance to the construction of orderly lawyer mediation mechanism. In the process of establishing the lawyer mediation mechanism, two aspects should be paid attention to. One is to give full play to the lawyer's management training function of the lawyers' association, to urge the lawyer to change his role in time in the mediation, and to clarify his own role orientation; The second is to improve the human and economic environment, to give more social tolerance and financial support to lawyers to participate in mediation, to set the right boundary of lawyer mediation in the system, and to clarify their role expectations.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.5

【参考文献】