诉源治理视角下律师调解制度的实践困境与完善路径

Practical Dilemmas and Improvement Paths of the Lawyer Mediation System from the Perspective of Litigation Source Governance

摘要: 律师调解制度作为我国多元纠纷解决机制的重要组成部分，是律师实务的核心内容之一，更是诉源治理体系中衔接法律专业服务与基层矛盾化解的关键纽带。2017年最高人民法院、司法部联合印发《关于开展律师调解试点工作的意见》，标志着律师调解制度正式步入制度化、规范化发展轨道。在诉源治理背景下，律师凭借其专业法律素养、丰富实务经验和中立第三方身份，在化解民事、商事乃至部分行政纠纷中发挥着独特优势，既能有效分流诉讼案件、缓解司法资源紧张的局面，也能降低当事人解纷成本、实现案结事了人和的社会效果。然而，结合律师实务及司法实践调研发现，当前我国律师调解制度在运行过程中仍面临诸多困境，包括律师参与积极性不足、调解程序不规范、经费保障机制不完善、调解协议效力缺乏充分保障等，这些问题严重制约了律师调解制度功能的充分发挥，也与律师实务中强调的“专业、高效、公正”的执业理念存在差距。本文结合律师实务相关知识，以诉源治理为研究视角，梳理律师调解制度的核心内涵与实践价值，分析当前制度运行中的具体困境及成因，提出针对性的完善路径，以期推动律师调解制度与诉源治理深度融合，提升律师调解实务水平，为我国多元纠纷解决机制的完善提供参考，同时也将律师实务所学理论知识与司法实践相结合，深化对律师职业角色与实务技能的理解。

Abstract: As an important part of China’s diversified dispute resolution mechanism, the lawyer mediation system is one of the core contents of legal practice, and a key link connecting professional legal services and grassroots conflict resolution in the litigation source governance system. In 2017, the Supreme People’s Court and the Ministry of Justice jointly issued the Opinions on Carrying Out Pilot Work on Lawyer Mediation, marking that the lawyer mediation system has officially entered the track of institutionalized and standardized development. Against the background of litigation source governance, lawyers, relying on their professional legal competence, rich practical experience and identity as neutral third parties, exert unique advantages in resolving civil, commercial and even some administrative disputes. It can effectively divert litigation cases, ease the strain on judicial resources, reduce parties’ dispute resolution costs, and achieve the social effect of “closing the case, resolving the dispute and reconciling the parties”. However, investigations into legal practice and judicial practice show that the current lawyer mediation system in China still faces many dilemmas in operation, including insufficient enthusiasm of lawyers to participate, non-standard mediation procedures, imperfect funding guarantee mechanisms, and inadequate protection of the validity of mediation agreements. These problems seriously restrict the full functioning of the lawyer mediation system and are inconsistent with the professional ethics of “professionalism, efficiency and fairness” emphasized in legal practice. Based on relevant knowledge of legal practice and from the perspective of litigation source governance, this paper sorts out the core connotation and practical value of the lawyer mediation system, analyzes the specific dilemmas and causes in the current system operation, and puts forward targeted improvement paths. It aims to promote the in-depth integration of the lawyer mediation system with litigation source governance, improve the practical level of lawyer mediation, and provide a reference for the improvement of China’s diversified dispute resolution mechanism. Meanwhile, it combines theoretical knowledge learned in legal practice with judicial practice to deepen the understanding of lawyers’ professional roles and practical skills.