Towards a Four-Tiered Model of Mediation: Against the Background of a Narrative of Social Sub-systems in Everlasting Cross-Fertilization PDF
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Hugo Luz dos Santos Towards a Four-Tiered Model of Mediation Against the Background of a Narrative of Social Sub-systems in Everlasting Cross-Fertilization Towards a Four-Tiered Model of Mediation Hugo Luz dos Santos Towards a Four-Tiered Model of Mediation Against the Background of a Narrative of Social Sub-systems in Everlasting Cross-Fertilization Hugo Luz dos Santos City University of Macau Macau, China ISBN 978-981-19-9428-9 ISBN 978-981-19-9429-6 (eBook) https://doi.org/10.1007/978-981-19-9429-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Foreword by Professor Ronald Montague Silley When I first met Prof. Hugo Luz dos Santos in 2019 at a conference on the beautiful island of Hainan, China, we quickly discovered we had a common interest in dispute resolution, particularly in mediation. Since then, he continued to impress me with his superb understanding and profound observations, especially in relation to the broad complexities of human interactions and the nature of disputes arising in the context of our globalized world. This book is a brilliant compilation, critical examination, and articulate extension of ideas connected to these topics. Mediation is a field that has attracted much academic discussion, as well as count- less aspirational texts. All too often these have not materialized into tangible differ- ences in actual dispute resolution practices. This book offers something meaning- fully different. By thoroughly combining the historical and theoretical foundations of mediation, with a distinct appreciation for the practical realities of contemporary disputes, Prof. Luz dos Santos provides a modern, highly relevant, and refreshingly unique approach to this subject. It is one that should be welcomed by academics and embraced by practitioners alike. This project was certainly an ambitious undertaking, but one that ultimately succeeds in its mission of enhancing our viewpoints on how disputes can better be perceived, approached, and effectively tackled. By developing his novel “Four-Tiered Model”, Prof. Luz dos Santos comprehensively examines the rich social, cultural, legal, and cross-border elements of a mediated dispute. This work was clearly a painstaking labour of love, fuelled by the author’s passion for advancing mediation. However, it was only possible due to his equally expansive grasp over a variety of distinct subjects, as well as his diverse international experience spanning various continents, cultures, and legal systems. Combining all of these, this book takes an interdisciplinary approach in connecting the most pertinent concepts for mediation and then meticulously filling missing pieces with valuable new insights. The result is a remarkable contribution to our collective knowledge that offers a more advanced v vi ForewordbyProfessorRonaldMontagueSilley theoretical understanding of mediation, paired with useful practical guidance for resolving the most difficult disputes that people will face today and into the future. Prof. Ronald Montague Silley European Co-dean of the China-EU School of Law China University of Political Science and Law Beijing, China Universität Hamburg Hamburg, Germany Foreword by Professor Yun Zhao This book is a most significant and welcome contribution to the literature on media- tion theory and practice. Professor Hugo Luz dos Santos has undertaken the challenge to study how mediation can be developed to realize social harmony and economic prosperity. He employed an interdisciplinary approach to examine mediation, which is undergirded by the fundamental tenets of legal history, sociology, anthropology, applied psychology, jurisprudence, advanced legal philosophy, and so forth. According to the author, functional framework of mediation should be under- pinned by four layers (the social dynamics of mediation—layer 1; the cultural dynamics of mediation—layer 2; the legal dynamics of mediation—layer 3; and cross-border and cross-cultural dynamics of dispute resolution—layer 4) that work in conjunction as to achieve two laudable goals: long-term harmony-equilibrium and wealth procedural maximization. The foregoing concepts are new in the realm of mediation and show promise. Long-term harmony-equilibrium stands for a crave to reshuffle the relationship between the estranged disputants. If the parties manage to iron out the issues between them, they will be able to find common ground and hammer out the dispute accord- ingly. In so doing, such dispute will not be channelled back to judicial courts anymore. If we multiply this reality over a long span of time, the overburdened judicial courts will be able to reduce their heavy backlogs over time accordingly. If that happens, long-term harmony-equilibrium will give rise to wealth procedural maximization (that draws on Posner’s concept of wealth maximization) in a given jurisdiction. Why? How? If the estranged disputants manage to settle their disputes out of courts and overhaul their relationship in the process, there will be a point at which only complex disputes will enter in judicial courts. As a result, judges will be able to decide those complex cases faster and better in the remit of court-adjudication. Why? Because the dockets will then be relieved from small-scaled disputes. A lot of gains in time, money, and efficiency will be yielded in the process: the essence of wealth procedural maximization. Overall, this book undertakes fine-grained research on an important topic that will prove important for lawmakers and policymakers worldwide. Professor Hugo Luz vii viii ForewordbyProfessorYunZhao dos Santos should be congratulated on this excellent publication, which enhances our awareness of how mediation can help us respond to problems and conflicts. Prof. Yun Zhao Representative, Regional Office for Asia and the Pacific, Hague Conference on Private International Law, Henry Cheng Professor in International Law and Head, Department of Law The University of Hong Kong Pok Fu Lam, Hong Kong Foreword by Professor Nuno Garoupa Disputes are part of social life because individuals have conflicting goals and different information sets. Every individual experiences potential conflict in any society. Medi- ation institutionalizes a resolution mechanism that reduces information gaps and promotes negotiated outcomes, thus lowering transaction costs and enhancing alloca- tive efficiency. Still, reality shows that, even when information asymmetries are miti- gated, there could be important clashes. One possible reason is that the same infor- mation can look quite diverse when individuals have distinct preferences, cultural backgrounds, or social underpinnings. Therefore, mediation cannot be understood outside of religion, philosophy, culture, psychology, and law. Hugo Luz dos Santos presents an important book about mediation. His book is that mediation is an effective way to promote long-term harmony-equilibrium, thus reducing the workload of the formal public system of dispute resolution. Mediation could and should be embedded in social life to promote more cooperation and better collective coordination of individual goals. A far-reaching consequence of effective mediation is that courts can focus on more complex litigation. However, as the author reminds us, the success of mediation reflects context. Thus, any functional role of mediation relies on the ability to adjust and adapt to cultural backgrounds and social diversity. In this regard, the research presented by Hugo Luz dos Santos is extremely relevant for the ongoing legal policy debates on the larger role of alternative resolution mechanisms. October 2022 Prof. Nuno Garoupa Professor of Law and Associate Dean for Research Antonin Scalia Law School George Mason University Arlington, VA, USA ix Acknowledgements This book has been written under the stellar supervision of both Prof. Dr. Wang Chao and Prof. Dr. Wang Morbey Wei, to whom I will remain indebted for the rest of my academic life. I would not have gotten this far if it were not for their lapidary and polymath skills of supervision. This book is the product of love. I hereby devote a heartfelt acknowledgement to my dearest wife, Leong Cheng Hang, the harbour of my life. She is the very reason I have gotten this far. She is my reason. All my reasons. Her shimmering light and unwavering support have proven invaluable to ensure the completion of this gargantuan task. All too often she has kept me afloat when I was beyond all hope to see the light of completion of this book amidst the murky waters of doubt I was engulfed on for far too long. She has taught me that love is the driving force of the world. Her pleas have neither fallen in barren soil nor have fallen in deaf ears. For that reason alone, you, my peerless love, should oblige me by living forever. Another wholehearted acknowledgement is to be credited to my ineffable mother, Fátima, for the staggering amount of sacrifices she has made for me and for the bevy of hardships she has endured to help me throughout this drawn-out journey. Little the world knows that she has given birth to me in a war zone amidst flying bullets. Mamã, the odds have always been against us but we have managed to pull through every single time. Neither unharmed nor unscathed. Yet stronger than ever before instead. On that account only, this book is also the by-product of resilience: «As the going gets tough, the tough keep going» (Billy Ocean). A final word goes to those who have keenly refused to give up in spite of the seem- ingly insurmountable obstacles that life has thrown upon them. Nothing is impossible for them. May the Almighty God help them to keep going. May future generations behold this very piece of academic research as an earnest attempt to chart the path ahead as to furnish baselines for human interaction in a peaceful and fuss-free manner. xi
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