Underpinned by a hybrid methodology (ranging from social sciences to human sciences), this book parses mediation in four perspectives, which stands as an unparalleled methodological approach so far.
Mediation has long been tethered to piecemeal and haphazard approaches, which have flatly failed to capture the gist of the uniqueness of this (often) poorly latched on (and poorly understood) dispute resolution mechanism. This book argues that, in order to fully grasp the richness of such dispute resolution mechanism, mediation must be parsed in four tiers. The first tier is the social dynamics of mediation. The second tier is the cultural dynamics of mediation. The third tier is the legal dynamics of mediation. The fourth tier is the cross-border and cross-cultural dynamics of mediation.
Taken together, the four tiers that premise the four-tiered model of mediation seek to unlock the finding in view of which law and social reality are tightly interlocked. In this vein, it is the underlying social reality of a given jurisdiction that should dictate the design of a pre-suit court-connected mandatory mediation with an easy opt-out, a central claim of both social dynamics of mediation (the first tier of the four-tiered model of mediation) and legal dynamics of mediation (the third tier of the four-tiered model of mediation).
Author(s): Hugo Luz dos Santos
Publisher: Springer
Year: 2023
Language: English
Pages: 221
City: Singapore
Foreword by Professor Ronald Montague Silley
Foreword by Professor Yun Zhao
Foreword by Professor Nuno Garoupa
Acknowledgements
Contents
Abbreviations
Part I Setting the Stage to the Four-Tiered Model of Mediation
1 Introduction
1.1 Introduction: Social Sub-systems in a State of Constant Cross-Fertilization and Its Intrinsic Linkage with Collective Sensemaking
1.1.1 (Gaps in the) Extant Literature Regarding the Dispute Systems Design Theory that Usher in, and Pave the Way to, the Construction of a Four-Tiered Model of Mediation
1.1.2 (Gaps in the) Extant Literature Regarding the Styles of Mediation: The Influence of Philosophy of Law and Schools of Thought in Shaping the Current Styles of Mediation
1.1.3 To What Extent Does the Four-Tiered Model of Mediation Plug the Pinpointed Gaps of the Previously Mentioned Styles of Mediation
1.1.4 The Extent to Which the Four-Tiered Model of Mediation Plug the Pinpointed Gaps of the Systems Design Theory
1.1.5 Research Questions
1.1.6 Research Methodology
1.1.7 Matters and Subjects that Fall Outside the Breadth and Scope of This Book
Part II The First Tier of the Four-Tiered Model of Mediation: Social Dynamics of Mediation
2 Historical Account on Macau’s Exquisite Two-Layered Law and Social Reality
2.1 The Rationale Behind the Creation of the First Tier of the Four-Tiered Model of Mediation (Social Dynamics of Mediation): Introduction
2.1.1 The Dawn of a Two-Layered Law and Social Reality and of a Two-Layered Cultural Originalism (1557–1573): The Break of Dawn of the Era of «What Is Mine Is Mine and What Is Yours Is Yours»
2.2 Conclusion
3 How Have Luhmann’s Social Sub-systems (Religion and Law) Interacted with (and Cross-Fertilized) Each Other in Anglo-Saxon England
3.1 How Have Mediation and Arbitration Unfolded in Anglo-Saxon England: A Long-Winded Tale of Social Sub-systems (Religion and Law) in a Permanent State of Cross-Fertilization
3.1.1 Introduction
3.1.2 Setting the Stage: Mediation in Anglo-Saxon England: The Interplay Between Originalism and the Uses of History: «Never Forget Where You Came From»
3.1.3 How Have Mediation and Arbitration Unfolded in Anglo Saxon England and Middle Age England: A Long-Winded Narrative of Social Sub-systems in Permanent Interaction (and Cross-Fertilization)
3.2 Conclusion
Part III The Second Tier of the Four-Tiered Model of Mediation: Cultural Dynamics of Mediation
4 Ascertaining Whether and to What Extent Culture Shapes Mediation
4.1 The Rationale Behind The Creation of the Second Tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation): Introduction
4.1.1 The Interplay Between The First Tier (Social Dynamics of Mediation) and the Second Tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation)
4.1.2 Luhmann’s Systems Theory and Social Sub-systems: A Brief (Thumbnail Sketch) Overview
4.1.3 Applied Psychology in the Compass of Cultural Dynamics of Mediation: The Seminal Taxonomies of Cultures of Honour, Cultures of Face and Cultures of Dignity (Drawing on, and Leveraging on, Leung/Cohen’s Grid)
4.1.4 The Sanctity of Party Autonomy and Self-determination in Cultural Dynamics of Mediation to Shape the Fundamental Tenets of Cultural Differentiation of Voice: Introduction
4.1.5 The Levels of Cultural Differentiation of Voice in Cultures of Honour, Cultures of Face, and Cultures of Dignity: The Level Indifferent to Voice, the Level That Conveys Group’s Voice, and the Level That Cares About Disputants’ Voice: Introduction
4.2 Conclusion
Part IV The Third Tier of the Four-Tiered Model of Mediation: Legal Dynamics of Mediation
5 Formal Access to Justice and Effective Access to Justice
5.1 The Rationale Behind the Creation of the Third Tier of the Four-Tiered Model of Mediation (Legal Dynamics of Mediation): Introduction
5.1.1 Formal Access to Justice: Philosophical Foundations Upon Which Stands Both Procedural Loneliness and Procedural Appearance Before Others in Legal Dynamics of Mediation
5.1.2 The Philosophical Foundations Upon Which Stands Both Formal Access to Justice and Equal Access to Procedural Action: (Dovetailing seamlessly) Hannah Arendt’s Concept of Loneliness and Sarah Drew Lucas’s Concept of Ontological Agency: Setting the Stage to Incorporative Mediation
5.1.3 The (Philosophical and) Theoretical Underpinnings of Effective Access to Justice as an Extension of Rule of Law
5.1.4 Mediation Ethics (to Further Dwindle the Scourge of) Mediator Misconduct
5.2 Conclusion
Part V The Fourth Tier of the Four-Tiered Model of Mediation: Cross-Border and Cross-Cultural Dynamics of Mediation
6 The Paramount Role of Culture in Cross-Border and Cross-Cultural Dynamics of Mediation
6.1 The Rationale Behind the Creation of the Fourth Tier of the Four-Tiered Model of Mediation (Cross-Border and Cross-Cultural Dynamics of Mediation): Introduction
6.1.1 «Peeking into the Cultural Anthropology Nest»: Towards a Sought-After Definition of Emic-Adaptive Concept of Culture in the Remit of Cross-Border and Cross-Cultural Dynamics of Mediation: Introduction
6.1.2 The Emic-Adaptive Perspective of Culture in Cross-Border and Cross-Cultural Dynamics of Mediation: Both the Stellar Cross-Cultural Mediator and the Empowered Disputants are to Stand at the Heart of a Clean Mediation Process on the Heels of Which Cross-Border and Cross-Cultural Disputes Are to Unfold
6.1.3 Philosophy of Language (Coupled with a Dash of Anthropology) and the Modalities of Communication of High-Context and Low-Context Communication (Edward T. Hall) to Be Used in Cross-Border and Cross-Cultural Dynamics of Mediation (Investor-State Mediation)
6.1.4 The Guiding Principles of Adaptive Mediation Against the Backdrop of the Anthropology-Borne Theory of Multiple Modernities (S. N. Eisenstadt) and Sociology-Laden Analytics of Power (Foucault) and the Theory of Self-organizing Rules (Durkheim): Its Sweeping Importance in Investor-State Mediation
6.1.5 Enforcement of Cross-Border Mediated Settlement Agreements Against the Backdrop of Singapore Convention on Mediation
6.2 Conclusion
7 Conclusions
Appendix
References
