Table Of ContentHugo 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
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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.
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