How lawyers are involved in mediation and what they do

1. Fully understand the facts of the case and grasp the truth;

2. Master the laws and policies so that they can be applied in a targeted manner;

4. Choose a suitable place for mediation;

It can be in a court, a law firm, or in the place where the parties are located or where the dispute occurs.

5. Grasp the main purpose of the parties and help the parties eliminate the unclear purpose caused by emotions;

Correctly analyze the psychology of the parties, grasp the focus of the dispute, and correct the excessive expectations of the parties.

6. Establish mediation ideas and formulate mediation plans.

Legal basis: Article 9 of the "Public Security Administration Punishment Law of the People's Republic of China" The public security organs may mediate and handle violations of the administration of public security such as fights or damage to other people's property caused by civil disputes, where the circumstances are relatively minor. Where the public security organs mediate and the parties reach an agreement, punishment is not to be given.

Where no agreement is reached through mediation or no performance is made after an agreement is reached, the public security organs shall punish the violators of the administration of public security in accordance with the provisions of this Law, and inform the parties that they may lawfully initiate a civil lawsuit in the people's court regarding the civil dispute.

The workflow of lawyer mediation is to first register the lawyer or firm that provides mediation services to facilitate citizens' inquiries, and after the lawyer accepts the case, the lawyer acts as the moderator to conduct mediation on the principles of equality, voluntariness, and legality.

Opinions of the Supreme People's Court and the Ministry of Justice on Carrying Out Pilot Work on Lawyer Mediation

9。Standardize lawyers' mediation work procedures. People's courts, public legal service centers (stations), lawyers associations, and law firms shall provide parties with a roster of law firms and lawyer mediators undertaking lawyer mediation work, and disclose the roster information on bulletin boards, official platforms, and other platforms, to facilitate parties' inquiries and selections.

When law firms and lawyers accept relevant entrustment** or participate in the resolution of conflicts and disputes, they shall inform the parties to give priority to mediation or other non-litigation methods to resolve disputes.

Lawyer mediation is generally presided over by a mediator. For major, difficult, or complex cases, or where the parties request that two or more mediators jointly mediate, two or more mediators may mediate, and a mediator is to be designated by the lawyer mediation studio or lawyer mediation center to preside. Where parties have a legitimate reason, they may apply to change the lawyer mediator.

Where lawyer mediators are to carry out mediation work in accordance with law in accordance with the mediation procedures, the period for lawyer mediation is 30 days, and this restriction is not applicable where both parties agree to extend the mediation period. If an agreement is reached through mediation, a mediation agreement shall be issued; If a mediation agreement cannot be reached at the expiration of the time limit, and the parties do not agree to continue mediation, the mediation shall be terminated.

When lawyer mediators organize mediation, they shall record the disputed matters and the mediation situation in writing, and have both parties sign and confirm it. Lawyer mediation studios or lawyer mediation centers shall establish complete electronic and paper written mediation files for the parties to make inquiries. Where the parties have not reached a mediation agreement at the end of the mediation procedure, the lawyer mediator may, after obtaining the consent of all parties, record in writing the facts that were not disputed by the parties during the mediation process, and have the parties sign and confirm it.

In litigation procedures, except for those involving national interests, social public interests and the legitimate rights and interests of others, the parties do not need to provide evidence on the undisputed facts that have been confirmed during the mediation process.

Where lawyer mediation organizations established in public legal service centers (stations), lawyers associations, or law firms accept direct applications from parties to preside over mediation of disputes, they are to be carried out with reference to the procedures described above.

The plaintiff can be directly approached to collect evidence, and for direct mediation, this can be submitted by the parties to the court. At the conclusion of courtroom debate, a judgment shall be made in accordance with law. Where mediation is possible before the judgment is made, mediation may also be conducted, and where mediation fails, a judgment shall be made in a timely manner.

Article 35 of the "Lawyers Law" stipulates: A lawyer who has been retained may, as required by the circumstances of the case, apply to the people's procuratorate or people's court to collect or collect evidence, or apply to the people's court to notify witnesses to appear in court to testify; Where lawyers conduct their own investigation and collect evidence, they may investigate the circumstances related to undertaking legal affairs from relevant units or individuals on the basis of the lawyer's practice certificate and the evidence of the lawyer's law firm.

Article 142 of the Civil Procedure Law of the People's Republic of China: At the conclusion of courtroom debate, a judgment shall be made in accordance with law. Where mediation is possible before the judgment is made, mediation may also be conducted, and where mediation fails, a judgment shall be made in a timely manner.

Legal analysis: According to the provisions of China's Civil Procedure Law, the parties can settle on their own in the course of litigation, or they can mediate through the people's mediation organization, and sign or seal the mediation document to express their consent. If a party participates in mediation through a lawyer, the lawyer shall abide by professional ethics standards such as honesty and trustworthiness and confidentiality; However, the law does not require the involvement of a lawyer for mediation and settlement.

Legal basis:1Article 106 of the Civil Procedure Law of the People's Republic of China:

The settlement in the litigation must be voluntary and must not be forced. The parties shall settle the dispute before and out of court and during the course of litigation; People's courts and people's mediation organizations shall actively assist parties in settling disputes. ”

2.Article 3 of the "Lawyers Law of the People's Republic of China": "Lawyers shall abide by laws and administrative regulations in their practice, follow professional ethics, and protect the lawful rights and interests of their clients. ”

Therefore, although mediation and settlement can be conducted on their own or through people's mediation organizations, if the parties choose a lawyer to participate in the mediation, the lawyer should abide by professional ethics standards.

In the real society, I believe that many people have learned about lawyers and mediators, and in judicial practice, according to relevant regulations, the main body of mediation is not only people's mediators. In this regard, the following is a specific introduction to whether a lawyer can be a mediator, and I hope that the content shared can be helpful.

Can a lawyer be a mediator?

Yes. When a lawyer can act as a mediator. According to the promulgation of the "Opinions", it is not simply to expand the subject of mediation from people's mediators to lawyer mediators, but to make a series of institutional innovations on the basis of the "People's Mediation Law".

Comparative analysis shows the four major innovations of the Opinions:

First, from the perspective of setting up venues, the coverage of lawyer mediation has greatly increased. Mediation centers for lawyers on leather stools may be set up in courts, public legal service centers, and lawyers associations, and mediation studios may also be set up in law firms.

Second, from the perspective of the validity of the agreement, the legal effect of lawyer mediation is guaranteed. Mediation agreements reached under the auspices of the people's mediation committee do not have enforceable effect. If one of the parties has any objection or fails to perform, it is still necessary to file a lawsuit with the court or both parties jointly apply to the court for confirmation of the validity of the agreement.

If the agreement reached through the mediation of the lawyer has money or valuable payment content, the creditor can directly apply to the court for a payment order; If an agreement is reached in the nature of a civil contract, either party may apply to the court for confirmation of its validity.

Third, from the perspective of financial security, the funds for lawyer mediation are more diversified. Unlike the mediation of the people's mediation committee, the mediation is free for all parties, and all the funds are subsidized. Where a mediation studio set up by a law firm accepts a direct application by the parties to mediate a dispute, it may collect fees from both parties.

Fourth, from the perspective of incentive mechanisms, economic incentives for lawyer mediation are set up. Where the parties reach a settlement agreement and apply to withdraw the lawsuit, the people's court is exempt from charging litigation fees. If one party does not participate in the mediation without justifiable reasons, or has obvious malice that causes the mediation to fail, the court may require it to bear the other party's attorney's fees.

Based on the above, the relevant content on whether a lawyer can be a mediator is sorted out. From this, the answer is yes. In fact, according to the law, lawyers can set up lawyer mediation centers in courts or public legal service centers, etc.