協作律師之研究

A Study in Collaborative Lawyer

我國發展訴訟外紛爭解決機制（ADR）已有多年，其對於紛爭解決，具有一定之成效。而在家事事件中，基於事件特性，部分家事事件即採取「調解強制」，足見其在部分類型事件具有重大意義。然而，無論係在家事事件或其他當事人有繼續交易或關係經營之事件，如調解程序未往促進式或合作型調解發展，即易成為競爭性對抗思維，甚難取得雙贏之結果。
基於現實上對於紛爭解決，一般係採調解程序與訴訟程序併行，當事人之律師較無促成紛爭解決合意、創造雙贏之熱忱，甚而傾向敵對性調解。為此，在美國乃於1990年間發展出所謂「協作律師」制度，該制度具高度專業整合、合作雙贏之意義，本文擬由其發展脈絡切入，並為詳細之說明，最後提出引入該制度之可行性評估。

The Alternative Dispute Resolution (ADR) system has been developed in our country for many years and has been effective in resolving disputes through arbitration, mediation, and conciliation. In family cases, the adoption of“mandatory mediation”shows that mediation is of great significance in some types of cases. However, whether in family cases or other cases where the parties have continued transactions or relationships if the mediation process does not be made into a facilitative or cooperative mediation, it will easily become a competitive negotiation mindset, which makes it difficult to achieve a win-win result.
In reality, when mediation and litigation are conducted together, the lawyers of the parties are less enthusiastic to facilitate the parties to reach a settlement of the dispute, to reach an agreement, and to create a win-win situation, and instead, the parties are led to adversarial mediation, the result of which is hardly satisfactory. For these reasons, the system of“Collaborative Lawyer”was developed in the United States around 1990, and both Collaborative Lawyer and Collaborative Practice have the meaning of high professional integration and win-win cooperation. This paper intends to start by introducing the development of the system and explain the system in detail. Finally, we propose an assessment of the feasibility of introducing the system.