Towards a Four-Tiered Model of Mediation: Against the Background of a Narrative of Social Sub-systems in Everlasting Cross-Fertilization 9811994285, 9789811994289

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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 countless aspirational texts. All too often these have not materialized into tangible differences in actual dispute resolution practices. This book offers something meaningfully 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

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Foreword by Professor Ronald Montague Silley

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 mediation 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 underpinned 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 accordingly. 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

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Foreword by Professor Yun Zhao

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. Mediation institutionalizes a resolution mechanism that reduces information gaps and promotes negotiated outcomes, thus lowering transaction costs and enhancing allocative efficiency. Still, reality shows that, even when information asymmetries are mitigated, there could be important clashes. One possible reason is that the same information 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

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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 seemingly 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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Contents

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

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 4.1 The Rationale Behind The Creation of the Second Tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation): Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 4.1.2 Luhmann’s Systems Theory and Social Sub-systems: A Brief (Thumbnail Sketch) Overview . . . . . . . . . . . . . . . . . . 93 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

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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 . . . . . . . . . 110 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 . . . . . . . . . . . . . 111 4.2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 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

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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 . . . . . . . . . . . . . . . . . . . . . . . 161 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 . . . . . . . . 161

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Abbreviations

ABA BL CIRC CIT EU EWCA EWHC HK ID IMI OHIO CT. APP. SAR SCM TEX. C. APP. UK UNCITRALCISARM

US WGII

American Bar Association British Library Circuit Cited on a previous footnote European Union England and Wales Court of Appeals England and Wales High Court Hong Kong Cited on the immediate precedent footnote International Mediation Institute Ohio Court of Appeal Special Administrative Region Singapore Convention on Mediation Texas Court of Appeal United Kingdom United Nations Commission on Trade and Development Convention on International Settlement Agreements Resulting from Mediation United States Working Group II

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Part I

Setting the Stage to the Four-Tiered Model of Mediation

Chapter 1

Introduction

1.1 Introduction: Social Sub-systems in a State of Constant Cross-Fertilization and Its Intrinsic Linkage with Collective Sensemaking 1. Human beings are, and often fancy themselves as, sense makers.1 In an earnest attempt to make sense in the outer world, human beings interact with each other permanently. Human interaction is thus redolent of, and permeated by, an undeterred yearn to make sense in the outer world. Mediation,2 a platform of collective sensemaking, stands as no exception.3 Collective sensemaking is to be neither 1 John Searle, “How to Derive Ought from Is”, The Philosophical Review, 73 (1) (1964): passim; John Searle, Speech Acts, Cambridge, Cambridge University Press, (1969): passim (stating that humans are indeed sense-makers that yearn to make sense in the outer world). Language plays a pivotal role in attaining the laudable goal of make sense. Mediation cannot afford to forsake its peerless contribute any further. It should not amount to a flabbergasting finding that language is one of the intellectual lodestars (of my proposal to creating a) linguistic dimension of adaptive mediation. Which is nothing but formulaic. Language is a tool to make sense. In fact, language is the befitted tool to make sense. Which is something worthy of being gushed over rather than glossed over. There would be no globalized society to be accounted for devoid of, and decoupled from, an adroit domain of language. See in Portuguese doctrine: José Faria Costa, “O direito penal, a linguagem e o mundo globalizado (Babel ou esperanto universal?)”, Revista de Legislação e de Jurisprudência, 138 (3955), (2009): passim (parsing the importance of language in the increasingly globalized criminal law realm). 2 But see: Jacqueline Nolan-Haley, “Mediation and Access to Justice in Africa: Perspectives from Ghana”, Harvard Negotiation Law Review, 21 (2015): 67–68 («Not every dispute calls for the elaborate trappings of court adjudication with its attendant costs and delays»). Acclaimed doctrine is championing for a paradigm shift in the realm of justice in which «ADR» stands as a cornerstone. In Italian doctrine: Michelle Taruffo, “Un’alternativa alle alternative: modeli di risoluzione dei confliti”, Revista de Processo, 152 (2007): 319–331. 3 In French language, Harold Garfinkel, “L’ethonomethodologie et le legs oublié de Durkheim”, Constructivism versus Naturalisme? Enquête: Éditions de l’École des Hautes Études en Sciences Sociales, Paris, Dalloz, (2007) (parsing the notion of making sense together in a mutually intelligible community).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_1

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1 Introduction

devoid of, nor detached from, a fine-grained attention to the underlying social reality of a given jurisdiction. Bereft (and absent) of which there would be no sizable procedural gains, much less the attainment of praiseworthy goals such as procedural justice and procedural fairness, to be accounted for in the purview of a Four-Tiered Model of Mediation. 2. The to-be-taken-into-account and sought-after interplay between law and social reality plays a pivotal role in the purview of a Four-Tiered Model of Mediation, whose foundations are to be laid down in this book. Which prompts the question: why is the connection between law and social reality so paramount in this regard? Every time a social problem gains traction and arises in a given jurisdiction, the underlying social reality must be taken into account to deal with it. The quintessential concept of collective sensemaking is not to be shrugged off in this regard. Collective sensemaking stands as a socially integrated response to address social problems. Collective sensemaking amounts to a thrust to ferret out, and rattle off, a befitted (and adroit) manner through which social problems can (and should) be dealt with. Conversely, collective sensemaking seeks to sweep aside (ideally: cast off) a bevy of social problems arisen from a (global or local) society while endeavouring to foreclose (or prevent) those social problems from either resurfacing or lingering on. To clutch such a commendable goal, a law-in-context methodology is utterly necessary. 3. The humongous (even: behemoth) challenges posed by the globalized and risk society4 amounts to a living testament of a much-needed law-in-context methodology5 to approach law and (a bustling and hectic) social reality.6 Inasmuch an aim to grasp, and lay hold of, collective sensemaking is making rapid strides in the globalized society, the thrust towards (the construction of, coupled with a keen attention to) law and social reality amenable to tackle the multifarious

4 See in Spanish doctrine on the interplay between sociedad de riesgo and the challenges arisen from it: Bernardo Feijoo Sánchez, “Sobre la «administrativizácion» del Derecho penal en la «sociedad de riesgo»: un apunte sobre la política criminal a princípios del diglo XXI”, Derecho Y Justicia Penal en el Siglo XXI. Liber Amicorum en Homenaje al Profesor Antonio González-Cuéllar Garcia, Madrid, Ed. Colex, (2006):137 ff. On the hazard of criminal law becoming a Symbolisches Strafrecht: Winfried Hassemer, “Symbolisches Strafrecht und Rechtsgüterschutz”, NSTZ, München, 89 (2014): 557 ff and passim. It is believed that RisikoGesellschaft is putting the fundamental tenets of criminal law in jeopardy. This question, albeit brimming with utmost importance, falls beyond the breadth and scope of this book. 5 Mark Van Hoecke, “Methodology of Comparative Legal Research”, Law and Method, (2018): 17 (on the dire need to «putting law-in-context aims at understanding the law, as a foreigner to that legal system and, hence, explaining why the law is as it is. Inevitably, this implies empirical observation». When it comes to the law-in-context methodology, this renowned scholar stated that «a historical study will inevitably also use sociological, economic, psychological, and/or other context data. In this way it may encompass, on occasion, a full law-in-context approach») (italics added). 6 Rodolfo Sacco, “Diversity and Uniformity in the Law”, The American Journal of Comparative Law, 49 (2001): 172 (contending that «law is not independent, nor separated from other social phenomena. In addition to law, language, knowledge, and the quality of human endeavour (material objects and intellectual creations) together constitute human culture»).

1.1 Introduction: Social Sub-systems in a State of Constant …

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issues arisen from it is not lagging far behind.7 Such a thrust to take heed of the underlying social reality8 in a given time span amounts to nothing but to a socially integrated response to tackle a bevy of legal problems posed by a seething and ever-evolving global society. 4. Against this backdrop, hardly any surprise springs from the fact that law and social reality,9 one of the linchpins of my Four-Tiered Model of Mediation, stand as interlocking concepts. A couple of historical-contextualized examples10 are to buttress my central claim that law and the ever-changing social reality are tightly interlocked, which will prove invaluable to usher in, and to pave the way to, the construction of an unprecedented and unparalleled Four-Tiered Model

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The worldwide thrust to tackle globalized crime constitutes a paradigmatic example of the ceaseless and everlasting interplay between law and social reality. Such thrust is neither new nor vapid. Whilst the legal community is bullish when it comes to grasping the sought-after goal of scrubbing out (and ideally stamp out) the heinous and gruesome effects of globalized crime in global economy, there is a candent issue in dire need of being addressed: Globalización, administrativización y expansión del derecho penal económico. An issue that begs for a globally integrated response to this (to-be-abhorred and to-be-frowned upon) social reality as opposed to a piecemeal, muddled and haphazard response. See in Spanish doctrine: Jose Terradilo Basoco “Globalización, administrativización y expansión del derecho penal económico”, Temas de derecho penal económico, Madrid, Trotta, (2004): 76–88; Jose Antonio Ramos Vásquez, “Del otro lado del espejo: Reflexiones desordenadas acerca del derecho penal en la sociedad actual”, in: Patricia Faraldo Cabana (Coord.), Nuevos retos del derecho penal en era de la globalización, Valencia, Tirant lo Blanch, (2004): 78 ff (on the pressing challenges posed by the ever-evolving Globalización, administrativización y expansión del derecho penal económico). Such preoccupation with the (boundless?) expansion of criminal law to the confines (or shall we say lane instead?) of administrative law harkens back a much-acclaimed monograph penned by the polymath Professor Jesús-Maria Silva Sánchez, La Expansión del Derecho Penal. Aspectos de la Política Criminal en las Sociedades Postindustriales, 2. Editions (1st Edition of 2001), Buenos Aires, BdeF, (2008): 18–131 ff. 8 John Searle, The Construction of Social Reality, New York, Free Press, 1995, pp. 1–256 (passim) (on the construction of social reality). In German doctrine, Ingeborg Puppe, Kleine Schule des Juristichen Denkens, Göttingen: Vanderhoeck and Ruprecht, (2008): 18–23 (setting forth the notion of institutional facts that amount to normative facts that have been included in the perimeter of legal provisions, thus forming a part of social reality. Such as the human dignity etched in art.º 30.º of Macau Basic Law). 9 The concept «law and social reality» has been used (before) in another context though. See amongst many other examples: Franz von Brenda-Beckmann, “Good governance, law and social reality: Problematic relationships”, Knowledge, Technology and Policy, Berlin, Springer, 7(3), September 1994, (1994): 55–67. In this regard, the novelty lies in the revamped approach as opposed to the amorphous use of an academic concept. The concept of Law and Social Reality is used in this book as a basis to unlock a set of silent forces of law and bring them into light. 10 Vernon Palmer, “From Lerotholi to Lando: Some examples of Comparative Law Methodology”, The American Journal of Comparative Law, 53 (1) (2005): 265 (posits that «context lies beyond the positive law»).

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1 Introduction

of Mediation. To cater to that, the uses of history11 and culture12 is paramount. Especially at the first tier (Social Dynamics of Mediation) and at the second tier (Cultural Dynamics of Mediation). Collective sensemaking (which is to unfold in social crystallization,13 and social synthesis,14 ) is inextricably linked to both tiers. 5. Taken together, the interplay between those two tiers is consistent with my central contention that Professor Luhmann’s social sub-systems (ranging from law, culture, society, religion, political ideology, economy, philosophy),15 despite their respective social autopoiesis16 and self-reference,17 do communicate externally with each other on a permanent basis thereby prompting the choice for mediation for cultural, economic and political-charged reasons in a given jurisdiction and in a given time period. 6. A couple of historical examples (ranging from Macau, Anglo-Saxon England) are to premise my central claim that certain social sub-systems (like religion, 11

Jack M. Balkin, “New Originalism and the Uses of History”, Fordham Law Review, 82 (2013): 652 (here is why: «history is a resource, not a command. It is resource in three senses. First, lawyers use of history to support arguments from each and every modality of argument. Rather than a distinct mode of argument, history is a resource for making arguments within each modality. Second, how history is used and how it becomes relevant depends on each modality´s underlying theory of justification. Third, historical arguments within each modality are always defeasible given sufficiently powerful countervailing considerations») (italics added). 12 Vivian Grosswald Curran, “Cultural Immersion, Difference and categories in U.S. Comparative law”, The American Journal of Comparative Law, (1991): 343–385 (championing for the need to undertake an «immersion in the culture under review»). 13 See: Part 3, Chap. 4, point 4.1.1 of this book (on Social Crystallization in Macau’s two-layered law and social reality and two-layered cultural and Anglo-Saxon England). 14 See: Part 3, Chap. 4, point 4.1.2 of this book (on Social Synthesis and collective sensemaking: the dire need to delve into a given jurisdiction’s cultural background and underlying social backbone to design the perimeter of disputes to be included in the remit of pre-suit mandatory mediation with an easy opt-out). 15 In German doctrine, Niklas Luhmann, Soziale Systeme. Grundriß einer allgemeinen Theorie. Frankfurt am Main: Suhrkamp, (1984) (1987): passim (on the general theory of systems and social sub-systems). 16 Niklas Luhmann, “Autopoiesis, Handlung und kommunikative Verständigung,” Zeitschrift für Soziologie, 11 (4) (1982): passim (on the fundamental tenets of autopoiesis). 17 Niklas Luhmann, Essays on Self-Reference, New York, Columbia University Press, (1990): passim (This renowned scholar claims that each social sub-system conserves its self-reference and autopoiesis. This author contends that each social sub-system has its own communication code. Further down this book, this renowned Sociologist adds that social sub-systems neither communicate externally nor interact with each other). This book aims to provide a revamped approach to Professor Niklas Luhmann’s ground-breaking work. There is a couple of historical examples that premise the claim I stand for. It is my firm conviction that not only social sub-systems communicate externally with each other, but some social sub-systems shape (like culture, religion, politics, and philosophy, economy, society) other social sub-systems (like law and mediation). Here lies the paramount importance of the interplay between the first tier of the Four-Tiered Model of Mediation (Social Dynamics of Mediation) and the second tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation), which is bound to send ripples across the third tier of the FourTiered Model of Mediation (Legal Dynamics of Mediation) and the fourth tier of the Four-Tiered Model of Mediation (Cross-Border and Cross-Cultural Dynamics of Mediation).

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philosophy, and culture) shape other social sub-systems (like law and mediation). This assertion lies at the heart of the proposed sub-title «A narrative of social subsystems in constant cross-fertilization». To the fullest extent of my recollection, no other piece of legal research has broached this topic thus far. As hinted above, a couple of historical examples to support the foregoing claim will be brought forth in Part 2, First Tier of the Four-Tiered Model of Mediation (Social Dynamics of Dynamics of Mediation).

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.

18

Amicable dispute resolution systems envisions, and disputants yearn for, efficiency18 and value innovation.19 A piece of empirical evidence undertaken in the wake of the Global Pound Conference of 2017 has shown that corporations long for gaining access to functional20 dispute resolution mechanisms.21 Bearing this backdrop very firmly in mind, it should not amount to a baffling finding that both academics and practitioners have been mustering up their best endeavours as to outline a both efficient and functional dispute resolution system to answer (and address) such a set of poignant calls. Nevertheless, such a thrust does not (must not) obscure, much less downplay, the utmost importance of the dispute system design movement, which has preceded the earth-shattering Global Pound Conference of 2017 though.

Global Pound Conference Global Trends Report from Herbert Smith Freehills and PwC, Global Pound Conference: Global Data Trends and Regional Differences Series, available at: https://www. pwc.com/gx/en/forensics/gpc-2018-pwc.pdf (access: 08.07.2020) (noting that «efficiency is the key priority of Parties in choice of dispute resolution processes»). 19 W. Chan Kim/Renée Mauborgne, Blue Ocean Strategy: How to Create Uncontested Market Space and Make the Competition Irrelevant, Cambridge, Massachusetts, Harvard Business Review Press, (2015): 1–215 (13–19). See: Jean-François Roberge/Véronique Fraser, “Cooperative Design Lawyering: How Can Lawyers Prevent Disputes Through Value Innovation”, Cardozo Journal of Conflict Resolution, 20 (2019): 557–582 (559) (CDL consists of a form to «facilitate and sustain collaboration between parties, using contracts as a relational tool»). 20 See also: Thomas D. Barton/James P. Groton, “Forty Years on: Practitioners, Parties, and Scholars Look Ahead”, Dispute Resolution Magazine, Spring 2018, (2018): 8–9 (positing that companies crave for efficient and functional dispute resolution mechanisms to solve commercial disputes). 21 Global Pound Conference Series, Shaping the Future of Dispute Resolution and Improving Access to Justice, Cumulated Data Results (2016–2017), available at: https://www.imimediation. org/research/gpc/series-data-and-reports/#905-909-reports (access: 08.07.2020). Converging: JeanFrançois Roberge/Véronique Fraser, “Cooperative Design Lawyering: How Can Lawyers Prevent Disputes Through Value Innovation”, cit.: 557–582 (559).

8

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3.

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1 Introduction

Dispute systems design theory, which can be traced back the 1980’s, accounts for one of the newest strands in the arena of dispute resolution.22 This movement nurtures the overriding goal of designing procedures to entertain and handle a gamut of disputes. Within which core stands tort law disputes23 ; transitional justice-borne disputes24 in the wake of vicious armed conflicts between rival groups or nations25 ; egregious human rights violations26 ; and the so-called «deliberative democracy».27 Hardly any surprise springs from the fact that a goodly fringe of ethical issues arising out dispute systems design theory were covered.28 Notwithstanding, uncertain is the extent to which the dispute system design theory adroitly addresses the sheer bulk of ethical (cultural and social) issues against the background of markedly different social29 and cultural backgrounds

Carrie Menkel-Meadow, “Are There Systemic Ethics Issues in Dispute System Design? And What We Should (Not) Do About it: Lessons from International and Domestic Fronts”, Harvard Negotiation Law Review, 14 (2009): 199 ff (on the ethical system ethical challenges posed by— and within—dispute system design). The sizzling hot topic of ethics in dispute resolution has also been at the core of this renowned author´s foci for quite a while now. Carrie Menkel-Meadow, “The Lawyer as Consensus Builder: Ethics for a New Practice”, Tennessee Law Review, 63 (2002): 104–109 (contending that the lawyer plays the pivotal role of consensus builder). 23 Francis McGovern, “Dispute System Design: The United Nations Compensation Commission”, Harvard Negotiation Law Review, 14 (2009): 169 ff (on dispute system design for tort law disputes). 24 Carrie Menkel-Meadow, “Process Pluralism in Transitional/Restorative Justice Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)”, University of California, Irvine, School of Law, Georgetown Law Center, Legal Studies Research Paper Series N.º 2015-86, (2015): 5 (arguing that there is an unfathomable «human necessity to move forward and grasp for what is good in humanity»). 25 Carrie Menkel-Meadow, “In the Land of Blood and Honey: What’s Fair or Just in Love and War Crimes?” Lessons for Transitional Justice, Framing Law and Crime: An Interdisciplinary Anthology, Caroline Joan S. Picart/Michael Hviid Jacobsen/Cecil Greek (Eds.), Law, Culture, and the Humanities Series, Madison, New Jersey, Vancouver, British Columbia, Fairleigh Dickinson University Press, (2016): 1–538 (passim) (on transitional justice in countries ravaged by wars). 26 Andrea Schneider, “The Intersection of Dispute Systems Design and Transitional Justice”, Harvard Negotiation Law Review, 14 (2009): 288 ff (on the importance of dispute system design in the remit of transitional justice). 27 Carrie Menkel-Meadow, “The Lawyer’s Role’(s) in Deliberative Democracy”, Nevada Law Journal, 5 (2004–2005): 346 ff (on the lawyer’s role amidst the crave of vying groups to achieve acceptable political outcomes in the purview of «deliberative democracy»). 28 Carrie Menkel-Meadow, “Are There Systemic Ethics Issues in Dispute System Design? And What We Should (Not) Do About it: Lessons from International and Domestic Fronts”, cit.: 231 (arguing that «we can only learn about what those ethical limits are or should be»). 29 Lisa B. Bingham, “Reflections on Designing Governance to Produce the Rule of Law”, Journal of Dispute Resolution, 1 (5) (2011): 67 ff (adducing to the need of taking heed of contexts upon framing a dispute system design by stating that «while the designs of these systems vary widely, research on why systems take certain designs in certain substantive and institutional contexts, and which designs are most effective, is still in its infancy»).

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though.30 A gap that the four-tiered model of mediation aims to plug by laying down the foundations upon which stands an unequalled and unmatched twopronged model of fairness-abiding mediator.31 Leveraging on, and drawing upon, the responsiveness of the (four tiers that comprise the) four-tiered model of mediation to glaringly different law and social realities and different cultural backgrounds (which ties together Social Dynamics of Mediation, Cultural Dynamics of Mediation, Legal Dynamics of Mediation and Cross-Border Dynamics of Mediation), the Four-Tiered Model of Mediation seeks to usher in a paradigm shift in mediation settings coupled with long-term harmony-equilibrium and wealth procedural maximization undertones. Additionally, the Four-Tiered Model of Mediation endeavours to bridge multitudinous gaps arisen from dispute systems design theory, which has paid scarce (if any) attention to the four tiers of mediation. Taken together, the (four tiers that premise the) Four-Tiered Model of Mediation seek to fulfil the (so far untapped) promise of mediation, which has been long overdue. The authorship of the innovative concept of dispute systems design can be ascribed to seasoned scholars such as William L. Ury/Jeanne M. Brett/Stephen B. Goldberg. Their influential research has sent ripples across the (then) stagnant waters of mediation32 and (to some extent) arbitration.33 Although suffused with

Carrie Menkel-Meadow, “Are There Systemic Ethics Issues in Dispute System Design? And What We Should (Not) Do About it: Lessons from International and Domestic Fronts”, cit.: 231 (this renowned author asserts that not all the ethical issues are dealt with in dispute systems design. In so doing, the author vowed that «new examples and cases will help us induce or deduce some clearer ethical standards, hopefully with little or no harm to those we serve with our designs»). 31 See: Part 4, Chap. 5, point 5.4.2.1 to point 5.4.3.3. of this book (on the fundamental tenets of a top-notch and state-of-the-art two-pronged model of effective-fairness abiding mediator to tackle the sizzling hot topic of mediator misconduct). 32 Frank E. A. Sander, “Some Concluding Thoughts”, Ohio State Journal on Dispute Resolution, 17 (2002): 706–709 (lavishing praise to dispute systems design). 33 Lisa B. Bingham, “Self-Determination in Dispute System Design and Employment Arbitration”, University of Miami Law Review, 56 (2002): 872 ff (on the impact of dispute system design in arbitration, especially labour disputes). See also: Nancy A. Welsh, “Institutionalization and Professionalization”, The Handbook of Dispute Resolution, Michael L. Moffit/Robert Bordone (Editors), San Francisco, Jossey-Bassey, (2005): 486–489 (focuses on the importance of dispute systems design in large corporations).

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1 Introduction

laudable aims, the dispute system design34 has focused primarily on interestbased35 considerations36 while lending scant weight to relational matters.37 Which, in my view, is bound to create more problems than it solves. Especially, when, in judicial settlement conferences38 and joint mediation sessions, respectively, judges and mediators succumb to a directive39 and coercive40 style with a view to balloon settlement rates and decrease clogged

Cathy Constantino, “Problem-Solving Mechanisms To Achieve Consensus: How Do We Ensure Successful Resolution?”, Fordham Urban Law Journal, 35 (2008): 206–211 (noting that dispute system design aspires to solve conflicts, but failed to account for a socially-culturally integrated response to those conflicts). But see: Amy J. Cohen, “Dispute Systems Design, Neoliberalism, and the Problem of Scale”, Harvard Negotiation Law Review, 14 (2009): 51 ff (sketching out an interesting interplay between neoliberalism and dispute systems design, stating that «contemporary dispute resolution scholars are transforming alternative principles for managing individual disputes into principles for managing larger-scale conflict against a backdrop marked by shifting forms of state power due, in part, to decades of neoliberal policies in the United States and elsewhere»). 35 Concurring: Stephanie Smith/Janet Martinez, “An Analytic Framework for Dispute Systems Design”, Harvard Negotiation Law Review, 14 (2009): 123 ff (stressing also the importance of dispute systems design be more focused on enhanced dispute resolution education other than litigation). 36 William L. Ury/Jeanne M. Brett/Stephen B. Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, San Francisco, Jossey-bass Management Series, Jossey-Bass, (1988): 1–232 (on the four-step phase of dispute systems design). 37 Paul M Laurie/Jeremy Lack, “Guided Choice Dispute Resolution Processes: Reducing The Time and Expense to Settlement”, Dispute Resolution International, 8 (2) (2014): 168 (focusing almost exclusively on the goal of helping disputants to «build on these common interests, set common objectives (such as deadlines and budget limits) and pursue a joint problem-solving and solutionoriented approach to resolving the matter as expeditiously as possible»). 38 Ayelet Sela/Nourit Zimerman/Michal Alberstein, “Judges as Gatekeepers and the Dismaying Shadow of the Law: Courtroom Observations of Judicial Settlement Practices”, Harvard Negotiation Law Review, 24 (2018): 83 (noting that «in the civil justice system, judges engage in case management and settlement promotion more than do in trials and judgments» thus giving credence to concerns related with the rampant phenomenon of vanishing trials). See also: Nancy A. Welsh, “The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?”, Harvard Negotiation Law Review, 6 (2001): 23–24, 25–28, 56–58 (contending that court-connected mediation prompts an adversarial mind-set, which nowadays bears, in her view, an «uncanny resemblance» to judicial settlement conferences). 39 Leonard L. Riskin, “Decision-Making in Mediation: The New Old Grid and the New Grid System”, Notre Dame Law Review, (2003): 18–79 ff (on the directive style of mediation). 40 James Alfini, “Trashing, Bashing and Hashing It out: Is this the End of “Good Mediation””, Florida State University Law Review, 19, (1991): 68–71 (decrying the so-called «basher style», which entails resorting to a style of mediation that is tantamount to forcing disputants’ hands to settle).

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dockets.41 This is one of the major drawbacks of focusing solely on both a rightsbased/interests-based discourse42 and bargaining tactics-charged discourse43 : the case may well settle, yet the relationship between the disputants will remain strained thus hampering the likelihood of a (future) voluntary compliance with the outcome of the mediated settlement agreement. The (once) settled dispute will be eventually channelled back to the judicial courts dockets with a view to enforce the judicial decision or the mediated settlement agreement, respectively. So much for the sought-after swiftness of a given system of administration of justice… Against the background of a frayed relationship, disputants´ trust 44 on the system of administration of justice will tend to tail off and fizzle out. As an upshot, the spectre of enforcement of the mediated settlement agreement will (always) draw near thereby lurking in the shadows of doubt. A revamped approach is needed in this regard. Such a revamped approach seeks to place both the stellar mediator and the informed-empowered disputants at the core of a clean mediation process with a view to yielding a long-term harmonyequilibrium. Such an uppermost goal (long-term harmony-equilibrium) is amenable to both solve (as opposed to simply settle) the quarrel and spur the (future) voluntary compliance with the outcome of the quarrel.45 Thereby running in the same direction of, and chiming in with, my newly-crafted concept of wealth procedural maximization. As a result, the likelihood of a properlysolved dispute be rekindled (and thus be channelled back to judicial courts) is to range from nugatory to null. Long-term harmony-equilibrium (mirrored on the likelihood to voluntarily comply with the outcome of the mediated settlement agreement building on

Frank E.A. Sander, “A Friendly Amendment”, Dispute Resolution Magazine, 6 (1999): 12– 21 (noting that the judge endeavours to coax disputants to reach a settlement while leveraging/harnessing the clout that comes along with his/her position. Such an approach has merited the allegation according to which judges are often coercive with a view to striking deals in judicial court case settlement conferences). 42 William L. Ury/Jeanne M. Brett/Steve B. Goldberg, Getting Disputes Resolved—Designing Systems to Cut Costs of Conflict, Cambridge, Massachusetts, Program on Negotiation at Harvard Law School, (1989): 41 ff (drawing reader’s attention to the fact that case settlement tends to be polarized between the rights-based and the interests-based positions). 43 Roger Fisher/William Gury/Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, (1991): 1–200 (passim) (on interest-based positions or bargaining positions in negotiation, that fail, however, in my view, to cater to a much-need long-term harmony-equilibrium and wealth procedural maximization). 44 Nancy A. Welsh, “The Reputational Advantages of Demonstrating Trustworthiness: Using the Reputation Index with Law Students”, Negotiation Journal, 28 (2012): 133–136 (stating that when disputants feel they have been fairly treated, trust is to tag along. As a result, disputants tend to evince openness to share information thus paving the way to experiencing both enhanced trust and heightened possibilities to change the relationship with the other disputant). 45 Tom R. Tyler, “Procedural fairness and compliance”, Swiss Journal of Economics and Statistics, 133 (1997): 219–240 (on the liaison between procedural fairness—in which voice, trust, trustworthy consideration, and a fair treatment awarded to disputants produce an enhanced sense of fairness— and the likelihood of compliance with the outcome of the dispute in the face of the former).

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1 Introduction

a reshuffled relationship) is to be rendered both tokenistic (and even) quixotic if the disputants are not able to (spawn and) make informed choices46 in mediation settings though.47 To prevent that from happening, lawyers must (are to) partake in mediation sessions with a view to assist the disputants to make informed choices in mediation settings.48 Without a hair of doubt. However, disputants must be empowered as to help themselves first. Hence the dire need of informedempowered disputants in the remit of the Four-Tiered Model of Mediation. To cater to that, a far-reaching grassroot mediation education program must be launched worldwide. A western-charged mediation education49 fraught with ethnocentrism50 must be weeded out as to accommodate the responsiveness to different cultural backgrounds51 accordingly. 10. Here lies the paramount importance of adaptive mediation,52 a new style of mediation to be set forth in this book, which is bound to, and thus is shaping up to, play a starring role in this regard. 11. The more adaptive (culturally and functionally) is the approach to mediation, the more procedural gains will be yielded in a given jurisdiction. The more adaptive (culturally and functionally) is the approach to mediation, the more procedural 46

Anjanette H. Raymond, “Yeah, But Did You See the Gorilla? Creating and Protecting an Informed Consumer in Cross-Border Online Dispute Resolution”, Harvard Negotiation Law Review 19 (2014): 130–132 ss and passim (highlighting the utmost importance of informed choices in dispute resolution settings). 47 Donna Shestowsky, “Disputants Preferences for Court—Connected Dispute Resolution Procedures: Why We Should Care and Why We Know So Little”, Ohio State Journal on Dispute Resolution, 23 (2008): 549 ff (highlighting that disputants’ ability to influence how their disputes are resolved are often-times thwarted by courts thus posing sizable challenges from the access to justice point of view). 48 Donna Shestowsky, “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante”, Iowa Law Review, 99 (2013–2014): 637–655 (building on a multijurisdictional body of empirical research of litigants’ perceptions of legal procedures, this acclaimed scholar reached rather gripping conclusions in light of which litigants indeed preferred mediation, the judge trial and negotiation by attorneys with clients present over all other tested and scrutinized legal procedures, such as litigation, non-binding arbitration, binding arbitration). 49 Jeremy Fogel Hon./S.I. Strong, “Introduction: Judicial Education, Dispute Resolution, and the Life of a Judge: A Conversation with a Judge Jeremy Fogel, Director of the Federal Judicial Center”, Journal of Dispute Resolution, 2 (3) (2016): 260–279 (stressing the importance of dispute resolution education in mediation and litigation). 50 Günther Frankenberg, Comparative Constitutional Studies. Between Magic and Deceit, Elgar Monographs in Constitutional and Administrative Law, Cheltenham, Edward Elgar, (2018): passim (on the perils of succumbing to «cognitive cannibalism» and «ethnocentrism»). 51 Serge Loode, “Navigating the Uncharted Waters of Cross-Cultural Conflict Resolution Education”, Conflict Resolution Quarterly, 29 (1) (2011): 74 (dispute resolution education matters indeed. But one should never lose sight of the fact that dispute resolution education embedded in Western teachings can spawn culturally biased communication in cross-cultural mediation settings though. Thus undermining the much-needed efforts to abridge cross-cultural misunderstandings in dispute resolution settings). 52 See: Part 5, Chap. 6, point 6.4 to point 6.1.4.5 of this book (on the theoretical underpinnings of adaptive mediation).

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gains will be yielded in a given jurisdiction. Hence higher will be the costeffectiveness, swiftness, and promptness of a given system of administration of justice. Hence higher will be the levels of formal access to justice53 and effective access to justice as an extension of Rule of Law.54 Hence higher will be the wealth procedural maximization in a given jurisdiction. Wealth procedural maximization draws on Posner´s seminal concept of wealth maximization.55

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 1.1.2.1

Legal Realism and Legal Pragmatism Underpinning the Interest-Based Model

1. The extant literature on the styles of mediation has paid scarce (if any) attention (whatsoever) to the four tiers of dispute resolution in mediation settings. 2. (The great bulk of) the extant styles of mediation are (still) casting on the long shadow of the both outmoded and outworn pragmatic model, which is underpinned by the problem-solving/interest-based model of mediation.56 The deranged (and frantic) quest for win–win solutions57 premised solely (and

53

See: Part 4, Chap. 5, point 5.1 to point 5.2 of this book (on the theoretical underpinnings of formal access to justice). 54 See: Part 4, Chap. 5, point 5.3.1 to point 5.3.4 of this book (on the theoretical underpinnings of the effective access to justice as an extension of the Rule of Law). The Four-Tiered Model of Mediation (and within which core, the Legal Dynamics of Mediation) aims not to carve out, much less rely upon, a catch-all International Rule of Law or an all-embracing «better rule of law». See, respectively: Simon Chesterman, “An International Rule of Law”, The American Journal of Comparative Law, 56 (2008): 331–362 (on the thrust to grasp (?) a catch-all International Rule of Law). See: Sagi Peari, “Better Law as a Better Outcome”, The American Journal of Comparative Law, 63 (1) (2015): 155–195 (156). 55 Richard A. Posner, “Wealth Maximization Revisited”, Notre Dame Journal of Law Ethics and Public Policy, 2 (1987): 85–89. 56 Roger Fisher/William Gury/Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, (1991): 1–200 (3–14) (hailing the benefits of a collaborative problem-solving model). Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, Cardozo Journal of Conflict Resolution, 11 (1) (2009): 4 ff and passim (on the fundamental tenets of the pragmatic model). Whose excellent piece of research I will follow (I have been following) very closely in this regard. 57 Michal Alberstein, A Jurisprudence of Mediation, Jerusalem, Hebrew University Magnes Press, (2007) (provides an excellent historical account on the evolution of dispute resolution models).

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1 Introduction

squarely) on interests (as opposed to positions)58 and bargaining positions59 stands as one of the sweeping goals of the pragmatic model. The pragmatic model is deeply rooted in the fact that it behoves to the estranged disputants to craft (and therefore ferret out) the bespoke solution to the case at hand. 3. Against this backdrop, the pragmatic model evinces sturdy ties with the American legal realism.60 This all-embracing (and all-out) movement aims to unwind the (nebulosity and) indeterminacy of legal provisions61 with a view to spawn a humane legal decision-making while ensuring cooperation and neutrality62 in mediation settings. A close-range look also elicits the impression that the pragmatic model, by focusing solely and squarely on an objective criterion to settle the dispute, bears a close resemblance with the legal pragmatism movement.63 4. The pragmatic model seeks to: (i) detach the estranged disputants from the nub of the problem; (ii) employ valiant efforts to ferret out creative solutions to the problems at hand (brainstorming can spawn «out-of-the-box» creative thinking); 58

Michal Alberstein, Pragmatism and Law: From Philosophy to Dispute Resolution, Aldershot, Ashgate Dartmouth, (2002): 1–354 (323–325) (provides a vivid account on the social science-based model, which has spawned the game theory of bargaining). Whose excellent piece of research I will follow (I have been following) very closely in this regard. 59 Roger Fisher/William Gury/Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In, cit., 3–14. 60 Frederick Schauer, Encyclopaedia of Philosophy of Law and Social Philosophy, Living Edition, Mortimer Sellers/Stephan Kirste (Editors), Springer Link, available at: https://link.springer.com/ref erenceworkentry/10.1007%2F978-94-007-6730-0_67-2 (access: 09.07.2020). («American Legal Realism is, preliminarily, a perspective that stresses the human factor in legal decision-making. At the extreme, some Realists maintained that there are no legally correct outcomes apart from the decision of particular judges with reference to particular facts. Less extremely, even those Realists who believe that there are legally correct outcomes not reducible to what some judge has decided on some occasion still insist that there are such frequent gaps between what the law on its face appears to indicate and what legal decision-makers actually do that focus on the former to the exclusion of the latter paints a false picture»). 61 Morton J. Horwitz, The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy, Cambridge, Massachusetts, Harvard University Press, (1969): 247–268 (on the thrust of legal realists to phase out—and eventually wind up—the worrisome indeterminacy of legal provisions). 62 Herbert Wechsler, “Toward Neutral Principles of Constitutional Law”, Harvard Law Review, 73 (1959): 2 ff (on the paramount importance of neutrality). 63 Because «it matters how judges decide cases»: Ronald Dworkin, Law’s Empire, London, Hart Publishing, (reimp. of edition of 1986) (1998): 1 ff and passim. On legal pragmatism: Ronald Dworkin, Taking rights seriously, Cambridge, Harvard University Press, (1997) (1st edition of 1978): 1–392 and passim; Ahron Barak, The Judge in a Democracy, New Jersey, Princeton University Press, (2006): 1–368, passim. Ronald Dworkin, A Matter of Principle, Oxford, Clarendon Press, (2001), (reimp. of edition of 1985), (2001): 10 ff; Ronald Dworkin, Taking rights seriously, 2nd edition, London, Duckworth Books, (1982): 3 ff. Cass R. Sunstein, Radicals in Robes, New York, Basic Books, (2006): 1–312 and passim. Ronald Dworkin, “Looking for Cass Sunstein”, The New York Review of Books, (2009): 56 ff (harshly criticizing the doctrinal stance of Professor Cass R. Sunstein set forth in Radicals in Robes). See also legal pragmatism: Richard Posner, Law, pragmatism and democracy, Cambridge, Harvard University Press, (2005): 18 ff and passim; Jules Coleman, The practice of principle: in defense of a pragmatic approach to legal theory, Oxford, Oxford University Press, (2003): 23 ff and passim.

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(iii) unlock and unearth solutions that would prove profitable to both disputants64 ; (iv) single out an objective criterion to settle the dispute.65 1.1.2.2

The Relational Theories of Feminism Underpinning the Transformative Model of Mediation

1. Before long, the therapeutic relational model of dispute resolution (concretely: the transformative model of mediation66 ), emerged in the realm of mediation. What does the transformative model of mediation stand for? What consists of? Drawing on the relational theories of legal feminism67 outlined by famed scholars like Carol Gilligan68 and Carrie Menkel-Meadow,69 the transformative model,70

64

Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, Cardozo Journal of Conflict Resolution, 11 (1) (2009): 4 ff and passim (on the fundamental tenets of the pragmatic model). Whose excellent piece of research I will follow (I have been following) very closely in this regard. 65 Roger Fisher/William Gury/Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In, cit., 10–14. See also: Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, cit., passim, which I have followed very closely in this regard. 66 Robert A. Baruch/Joseph P. Folger, “Transformative Mediation: Theoretical Foundations”, Transformative Mediation: A Sourcebook—Resources for Conflict Intervention Practitioners and Programs, Joseph P. Folger/Robert A. Baruch Bush; Dorothy J Della Noce (Editors), Reston, VA: Association for Conflict Resolution; Hempstead, New York, Institute for the Study of Conflict Transformation, (2010): 15–25 (contending that the mediator´s task boils down to «support and never supplant party deliberation and decision making»). 67 Katherine T. Bartlett/Rosanne Kennedy (Editors), Feminist Legal Theory: Readings in Law and Gender (New Perspectives on Law, Culture and Society), Boulder, Colorado, Westview Press, (1991): 1–460 (the feminist legal theory stands for the gender differentiation—between men and women—and strives for ascribing a new voice to the oppressed women. Furthermore, the feminist legal school of thought stands for both the defense of the weak and the ones who were unlawfully disfranchised from their rights. Those who are unable to fend themselves off amidst the tyranny of the majority). See also on agonistic feminism: B. Honig, “Toward an agonistic feminism: Hannah Arendt and the politics of identity”, B. Honig (Ed.), Feminist interpretations of Hannah Arendt, University Park, Pennsylvania, Penn State Press, (1995): 8 ff (agonistic feminism strives to oust unlawful forms of domination). See also: Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, cit., 4 ff; which I follow closely. 68 Carol Gilligan (editor)/Janie Victoria Ward (Editor)/Jill McLean Taylor (Editor)/Betty Bardige (Editor), Mapping the Moral Domain, A Contribution of Women’s Thinking to Psychological Theory and Education (Contribution to Women’s Thinking to Psychological Theory), Cambridge, Massachusetts, Harvard University Press, (1990): 1–432 (on the backbone of feminist legal school of thought, which stands for a rehashed ethics of proximity between human beings and feminist self-empowerment). 69 Carrie Menkel-Meadow, “Toward Another View of Legal Negotiation: The Structure of ProblemSolving”, University of California Law Review, 31 (1984): 753 ff (stands for a feminist framework in dispute resolution, concretely in legal negotiation). 70 Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, cit., 4 ff.

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1 Introduction

a strand of narrative agency,71 has been brought into light. The transformative model stands for a drastic overhaul in the relational dynamics between estranged (and often frazzled) disputants: the cohort of selves in need of care. Yearns to empower disputants72 while striving to humanize73 mediation anchored in a new-fangled «ethics of care».74 2. The whole thrust to humanize disputes, a legacy of feminist legal theories, has given rise to a subset of legal schools of thought. Amongst which stands the deemed therapeutic jurisprudence. This branch of legal thought also draws on a set of feminist legal theories while bearing ethics of care very firmly in mind.75 Therapeutic jurisprudence’s sweeping goal is to treat the disputants with a view to improve the community in which they live and (ideally) thrive. Hardly any surprise springs from the fact that therapeutic jurisprudence has both collaborative justice76 and restorative justice77 undertones by taking the interests of the 71

Sarah Drew Lucas, “The primacy of narrative agency: Re-reading Seyla Benhabib on narrativity”, Feminist Theory, 19 (2), (2018): 123–143 (noting that «by self I mean the unique confluence of narratives and norms that make up each individual. These norms and narratives are always changing, but the individual´s uniqueness is constant»). 72 Robert A. Baruch Bush, “A Pluralistic Approach to Mediation Ethics: Delivering on Mediation’s Different Promises”, Ohio State Journal on Dispute Resolution, 34 (3) (2019): 474 (avers that «what mediators do, instead of directing the process themselves, is to support the parties ‘own process of presenting their views, thinking about what is being said, and making their own decisions on how to understand the situation, their options, and each other—and ultimately on what, if anything, they want to do about all these things») (italics added). 73 Robert A. Baruch/Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict, Revised edition (25th of October of 2004), San Francisco, Jossey-Bass, (2004): 1–304 (these authors laid down a «transformative model» of mediation, which has greatly (and neatly) humanized mediation settings). 74 Robert A. Baruch Bush, “What Do We Need a Mediator For?”: Mediation’s “Value-Added” for Negotiators, Ohio State Journal on Dispute Resolution, 12 (1996): 1 ff (on the much-need ethics of care in mediation settings with a view to humanize dispute resolution). 75 Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, cit., 4 ff and passim. 76 Carrie Menkel-Meadow, “Getting to “Let´s Talk”: Comments on Collaborative Environmental Dispute Resolution Processes”, Nevada Law Journal, 8 (2008): 835–842 (pinpointing the success of «bottom up» collaborative processes and consensus building). See also: Claudia Lanzetta, “Mediation/Collaborative Law: Exploring a New Combination in Alternative Dispute Resolution in Cases of Divorce and Domestic Violence”, Cardozo Journal of Conflict Resolution, 20 (2019): 359 ff (championing for an «hybrid process of Mediation/Collaborative Law-Med-Collab-be afforded a place on the dispute resolution continuum and offered as another option of “fitting the forum to the fuss” of couples with a domestic violence issue») (internal citations omitted). 77 John Braithwaite, Restorative Justice and Responsive Regulation, Studies in Crime and Public Policy, Oxford, Oxford University Press, (2002): 1–368 and passim (avers the importance of circle sentencing, the shame sanction, family group conferences, reintegrative shaming and the iconic talking stone. Taken together, those features are of paramount importance in attaining the soughtafter goal of restorative justice). See also: Kathleen Daly, “Restorative Justice, The real story”, Restorative Justice, Declan Roche (Editor), London, Dartmouth Ashgate, (2003): passim (on the importance of restorative justice in grasping a much-need social pacification between the offender and the victim); Teresa Lancry A. S. Robalo, Breve Introdução à Vitimologia, Coimbra, Almedina, (2019): passim (arguing that victimology, restorative justice and victim-offender mediation

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victim in due account. Which is of utmost importance in victim-offender mediation, especially (but not just) when redress78 is due with a view to sap (ideally: stamp out) the phantom of injustice79 that often looms large in this regard. In this vein, a feminist-charged ethics of care toward the to-be-empowered self and the protection of gender-related human rights are ubiquitous. 3. Along with the commendable aim to protect human rights came the crave to aggrandize the levels of human rights consciousness with a view to afford to laypeople a larger (and greater80 ) access to justice and, foremost, to make rights utterly effective.81 1.1.2.3

The Critical Legal Studies Movement Underpinning the Narrative Model of Mediation

1. Bearing this backdrop very firmly in mind, the movement of Critical Legal Studies has pushed forward its agenda to instil human rights consciousness onto citizens

are profoundly intertwined). On victim-offender mediation, Lynn S. Urban/Jeanne Markway/Kay Crockett, “Evaluating Victim-Offender Dialogue (VOD) for Serious Cases Using Umbreit’s 2001 Handbook: A Case Study”, Conflict Resolution Quarterly, 29 (1) (2011): 3 (contending that the use of victim-offender mediation and restorative justice within the «criminal justice system has increased substantially in recent years»). 78 Valentina Spiga, “No Redress without Justice. Victims and International Criminal Law”, Journal of International Criminal Justice, 10 (2012): 1383 ff (holding that there is no such thing as no Redress Without Justice). 79 Converging: Kai Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part, Oxford, Oxford University Press, (2013): passim, 88 ff (on the dire need of affording redress to the aggrieved victim to shun the spectre of injustice). 80 Marc Galanter, “Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change”, Law & Society Review, 9 (1974): 98–103 (this renowned author talks about a social reality in which the dubbed «repeat players»—which go by the name of «haves»—tend to «to come out ahead» by putting their knowledge and vast resources to good use. This perceived advantage will not only impact the choice of the procedures, but will ultimately benefit their interests as opposed to the deemed «one-shot» players (the «have nots») that will have slimmer and fewer chances to get palpable results in dispute resolution). But see: Richard Lempert, “A Classic at 25: Reflections of Galanter’s “Haves” Article and Work It Has Inspired”, Law & Society Review, 33 (1999): 1100–1108 (noting that Galanter’s analysis has focused primarily on the interplay between «repeat playing» and courts and has paid little to none attention to the impact of «repeat playing» on structuring and framing rules in the remit of health care or social security). 81 Mauro Cappelletti/Bryant Garth, “Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective”, Buffalo Law Review, 27 (1978): 180 ff (on the fundamental tenets of access to justice amidst a far-reaching a worldwide movement to make rights effective, a beacon of the subsequent Critical Legal Studies movement).

18

1 Introduction

(in general) and disputants (in particular). The central grievance of Critical Legal Studies was the abhorrent indeterminacy of law.82 The whole thrust to make rights effective (as opposed to appallingly tokenistic) is not by all means flabbergasting at this glance. Especially in the compass of situations against the backdrop of which estranged disputants tend to harbour an unfettered (and all-out) proclivity to distrust. Distrust that is fuelled by the intricacies of a both labyrinthine and mind-bendingly world in which quarrels display a penchant to (swiftly) careening into chaos and (briskly) fall out of bounds. The sought-after necessity to transmogrify a cluster of amorphous rights into a bundle of effective rights must not be decoupled from this assertion. This is a seemingly meaningless detail that leaves the door of settlement slightly ajar. Thereby allowing the (estranged) disputants to map the way forward as far as a reshuffled relationship is concerned. 2. Against the background of the hectic and frantic movement of Critical Legal Studies, the narrative model of mediation seeks to reshuffle the relationship between the estranged disputants83 with a view to simmer down the seething (often boiling) temperature of the dispute. One of the propelling forces behind the narrative model is the overriding goal to usher in, and to pave the way to, «an alternative narrative»84 with a view to sweep aside overblown (often infatuated) notions of self , a trademark of cultures of dignity.85

82

Alan C. Hutchinson/Patrick J. Monahan, “Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought”, Stanford Law Review, 36 (1984): 199–245 (200– 202) (on law´s indeterminacy, which would eventually merit vitriolic remarks from other Critical Legal Scholars). Soon enough, the grievances toward law’s indeterminacy were to be levelled up. Critical legal scholars not only debunked the indeterminacy of law, but also the facts ‘nagging— and, foremost, unsettling—uncertainty regarding legal decision-making. See: Ian McLeod, Legal Theory, 3rd Edition, New York, Palgrave Macmillan Law Masters, (2005): 140–150 (decrying law’s and facts indeterminacy, especially in cases in which legal decision-making is to rely upon witnesses ‘flawed and skewed memory, which is to cast doubts on the witnesses’ ability to aid judges in attaining the arduous task to serve justice in the first place). 83 Michal Alberstein, “Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations”, cit., 14 ff. 84 Id. at 15 ff. 85 Carrie Menkel-Meadow, “The trouble with the Adversary System in a Post-Modern, Multicultural world”, William and Mary Law Review, 38 (1996): 5 ff (noting how bellicose, adversarial and belligerent a culture of dignity—United States of America—is). See: Part 3, Chap. 4, point 4.5.3.1 to point 4.5.3.1.3 of this book (on the level that cares about disputants’ voice or an individual voice and its drawbacks: Over-optimism, inflated egos, and zero-sum mind-set in mediation settings against the backdrop of which the facilitative, narrative, insight and the transformative style of mediation are the befitted styles of mediation for cultures of dignity).

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3. Disputants are keenly encouraged to trot out to tell their side of the story.86 Voice, one of the lodestars of mediation, especially in the remit of cultures of dignity in which the individual is to be glorified87 (even lionised and hallowed), is one of the flagships of the narrative model of mediation. Latch on the underlying backdrop of the dispute stands also as a sweeping goal. The narrative model is not about exchanging grievances, but to dredge up an alternative narrative to yield mutual understanding in mediation settings instead. The yearning hope to clutch mutual understanding would influence subsequent models of mediation. Such as the watershed insight model of mediation. 1.1.2.4

Lonergan’s Insight Theory and Jack Mezirow’s Transformational Learning Theory Underpinning the Insight Model of Mediation

1. Building on, and dovetailing seamlessly the fundamental tenets of, the narrative model of mediation and transformative model of mediation,88 the insight model of mediation has surfaced in the compass of mediation. The insight model of mediation is not to be bogged down to either of those models of mediation though.

86

John Winslade/Gerald Monk, Narrative Mediation: A New Approach to Conflict Resolution, San Francisco, Jossey-Bassey, (2000): 1–256; John Winslade/Gerald Monk, Practising Narrative Mediation: A New Approach to Conflict Resolution, San Francisco, Jossey-Bassey, (2008): 1– 341 («John Winslade and Gerald Monk—leaders in the narrative therapy movement-introduce an innovative conflict resolution paradigm that is a revolutionary departure from the traditional problem-solving, interest-based model of resolving disputes. The narrative mediation approach encourages the conflicting parties to tell their personal “story” of the conflict and reach resolution through a profound understanding of the context of their individual stories. The authors map out the theoretical foundations of this new approach to conflict resolution and show how to apply specific techniques for the practical application of narrative mediation to a wide-variety of conflict situations»). 87 See: Part 3, Chap. 4, point 4.3.1 of this book. 88 Salvador Garrido Soler, “Insight mediation: a reflective and pedagogical model to address conflicts Mediation insight”, Revista de Mediación, (2017): 1 («Insight Mediation is and original mediation model originated in Canada that was created as a reaction to traditional linear models, i.e. narrative and transformative models. This approach envisages the mediation intervention as a learning interactive process for the participating people (including the person leading the intervention). It is based on two philosophical and pedagogical theories that prioritize personal reflection to reach knowledge: Lonergan’s insight theory, and Mezirow’s transformational learning theory. Using these two theories, its founders crafted a process resorting to specific communicative skills to overcome conflict, which is conceived as experiencing a threat to the most intimate certainties a person has. Lastly, the fact that this approach has been consolidating for over a decade makes it qualify as the fourth great»).

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1 Introduction

2. Drawing on Bernard Lonergan’s insight theory,89 Lonergan’s-created Mark D. Morelli/Elisabeth A. Morelli’s insight theory,90 and Jack Mezirow’s transformational learning theory,91 the insight model of mediation92 has tied together (and blended) the theoretical underpinnings of the narrative model of mediation (mutual understanding with a view to breed an alternative narrative to the dispute) and transformative model (the keen respect for voice,93 an intellectual centrepiece of social psychologist feminist theories, and the empowerment of the cohort of selves) as a catalyst to human understanding at the table of mediation. 3. However, as hinted above, the insight model of mediation is not to be narrowed down, much less tethered to, either the narrative model of mediation or the transformative model of mediation. Whilst the insight model has taken into account

89

Bernard Lonergan, Insight: A study of human understanding, Toronto, Canada, University of Toronto Press, (1957-1st edition/1992) (carries out an in-depth research on human understanding, which would serve as a yardstick to the insight model of mediation. Lonergan’s insight theory hails the multitudinous benefits of learning-centered approach to dispute resolution in which the disputants involved are to ameliorate their variegated universe of self-understandings. Such freshlyacquired self-understanding (to-be-morphed into mutual understanding) is to pave the way to a streamlined human understanding in dispute resolution, especially in mediation settings). 90 Mark. D. Morelli/Elizabeth A. Morelli, The Lonergan reader, Toronto, Canada, University of Toronto Press, (2002) (drawing upon Lonergan’s insight theory to stress the importance of selfcentered learning with a view to spur human understanding). 91 Jack Mezirow, Education for perspective transformation: Women’s re-entry programs in community colleges. New York: Teacher’s College, Columbia University, (1978) (Transformational learning theory accounts for an adult learning theory set forth by Jack Mezirow in the seventies of the twentieth century, which was subsequently updated over the course of years. Jack Mezirow claims that adults experience plays the role of a spark plug (a social stimulant or a lever) that lead them to question the way they see the world while equally questioning the way they interface with others amidst the sort-of dystopian world we live in, «the disorienting dilemma», which triggers an overhaul in their worldview). For a revision that kept the kernel of transformational learning theory unscathed, see: Jack Mezirow, Transformative Dimensions in adult learning, San Francisco, Jossey-Bass, (1991). For an excellent synopsis of Mezirow’s Transformational learning theory. See also: Frederick Schauer, “Jack Mezirow on Transformative Learning”, Andrew Kitchenham, Encyclopedia of Sciences of Learning, Edition of 2012, Norbert M. Seel (Editor), Springer Link, available at: https:// link.springer.com/referenceworkentry/10.1007%2F978-1-4419-1428-6_362 (access: 10.07.2020). 92 Cheryl A. Picard, Practising Insight Mediation, Toronto, Ontario, University of Toronto Press, Scholarly Publishing Division, (2016): 1–200 («A practical companion to the much-acclaimed Transforming Conflict through Insight, Practising Insight Mediation is a book about how insight mediators do their work and why they do it that way. In the book, Cheryl A. Picard, co-founder of insight mediation, explains how the theory of cognition presented in Bernard Lonergan’s Insight can be used as the basis for a learning-centred approach to conflict resolution in which the parties involved improve their self-understandings and discover new and less threatening patterns of interaction with each other through efforts to better their conflict relations»). 93 Carol Gilligan, In a different voice, Cambridge, Massachusetts, Harvard University Press, (1982): passim (this social psychologist author stands for a new voice to succor the weaker fringes of population while striving to wide-opening the door of mutual understanding amidst a mercurial and whimsical world in which the conflict is rife).

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the fundamental tenets of both the narrative model of mediation and the transformative model of mediation,94 the mediators, unlike in the pinpointed models, must pay a fine-grained attention to the disputants’ meaning-fraught expressions as opposed to (solely and blindly) heed their emotions while partaking in joint mediation sessions. 4. Recall, the mediator is expected to lend a considerable amount of weight to disputants’ emotions. There must be no lingering doubts about that. Notwithstanding, the mediator’s toolkit is to be channelled (almost exclusively) to the yearning hope to grasp the pith of the relational dynamics between the estranged (and often frazzled) disputants. By means of which the insight mediator is allotted the task to ameliorate (the fluidity of) the communication channel amongst the disputants with a view to «explore the events, experiences, meanings, and emotions that have caused and sustained the conflict».95 5. Against this backdrop, the insight model of mediation is premised on, and is underpinned by, four foundational pillars: (i) People display a two-edged nature: individual and social.96 In engaging in relationships, human beings long for mutual understanding despite the markedly different batch of values and interests97 ; (ii) in an earnest attempt to grasp the disputants’ underlying reasons to act (or not to act), the mediator must clutch the set of values and feelings nurtured by them98 ; 6. (iii) More often than not, conflict springs from a collision of the foregoing batches of values and interests. Bearing this background in mind, the mediator must be acquainted with, and gain access to, the foregoing batches of values and interests to assist the disputants in solving the quarrel99 ; (iv) against the backdrop of the dire need to delve into, and shine light on, the batches of values and interests nourished by the disputants, the mediator is to unveil (often uncover) a set of insights (the «root of things»100 that are not «merely intellectual, they are also affective»101 ). In drilling into the «root of things», the mediator is bound to usher in an «emotional shift»102 amenable to unlock other «insights into what the conflict “means” to each party by discovering what each party cares about and how that can be interpreted as a threat by other party».103 94

Cheryl A. Picard/Peter Bishop/Rena Ramkay/Neil Sargent, The art and science of mediation, Toronto, Canada, Edmond Montgomery, (2004): 109–130 (undertaking a seamless articulation between the insight model of mediation and the transformative model of mediation with a view to forging new patterns of interaction and mutual understanding in mediation settings). 95 Cheryl A. Picard/Kenneth R. Melchin, “Insight Mediation: A Learning-Centered Mediation Model”, Negotiation Journal, 23 (1), (2007): 38. 96 Id. 97 Id. 98 Id. 99 Id. 100 Id. 101 Id. 102 Id. 103 Id.

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1.1.2.5

1 Introduction

Lon L. Fuller’s Model of Arches of Morality

1. The foregoing batches of models of mediation (some tightly and some loosely) build on Professor Lon L. Fuller’s model of morality underpinning the dispute resolution mechanisms.104 Within which core, mediation. According to this esteemed scholar, the set of dispute resolution mechanisms (ranging from negotiation, mediation, arbitration, and court adjudication) are tethered to markedly different arches of morality.105 Concisely, every dispute resolution mechanism has a specific function coupled with a glaringly different lighthouse of morality. The Influence of Lon L. Fuller´s Model of Arches of Morality on Riskin’s Grid 1. Professor Lon L. Fuller’s arches of morality book have tellingly swayed other mediation doyens. A bird’s eye view at Riskin’s grid elicits such an impression. Riskin’s grid revolves around the mediator’s function and the mediator’s approach to problem-solving or problem-framing. Problem-framing has two strands. The first one relates to the extent to which the mediator frames the dispute narrowly or broadly.106 The second one is related with the extent to which the mediator facilitates or evaluates107 the dispute in joint mediation sessions or caucuses sessions.

104

Lon L. Fuller, “An Afterword: Science and the Judicial Process”, Harvard Law Review, 79 (1966): 1604 ff; Lon L. Fuller, The Principles of Social Order,: Selected Essays of Lon L. Fuller— Revised Edition, Oxford, Hart Publishing, Kenneth I. Winston (Ed.), (2002): 1–344; Lon L. Fuller, “The Forms and Limits of Adjudication”, Harvard Law Review, 92 (1978): 353 ff; Lon L. Fuller, “Mediation—Its Form and Functions”, California Law Review, 44 (1971): 305 ff; Lon L. Fuller, “Collective Bargaining and the Arbitrator”, National Academy Arbitration Procedure, 15 (1962): 8 ff; Lon L. Fuller, “An Afterword. Science and the Judicial Process”, Harvard Law Review, 79 (1966): 1604 ff (noting that each dispute resolution mechanism—ranging from adjudication, negotiation, conciliation, mediation, to arbitration—had their own structures, procedures and, foremost, glaringly different «moralities»). 105 See: Lon L. Fuller, “Mediation-Its Forms and Functions”, California Law Review, 44 (1971): 305, 308, 328–27 (parsing mediation and stating that it is one of the only forms of social ordering that does not have government power or authority as its primary focus). 106 Dorcas Quek, “Facilitative Versus Evaluative Mediation: Is There Necessarily a Dichotomy?”, Asian Journal on Mediation, (2013): 66 ff (summarizing Leonard´s Riskin grid), whose research I will follow closely. 107 Leonard L. Riskin, “Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed”, Harvard Negotiation Law Review, 1 (1996): 7–49 (defining evaluative mediation in light of which the mediator assesses the weaknesses and strengths of the case or legal position thereby predicting the likelihood of success—or the lack thereof—of the latter and directing «some or all of the outcomes of the mediation»).

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Riskin’s Grid of Facilitative and Evaluative Style of Mediation 1. In fleshing out the «facilitative-evaluative continuum»,108 Leonard Riskin has thrown light on the fundamental tenets of both facilitative mediation109 and evaluative mediation.110 Riskin’s grid has stirred both blistering criticism (even outrage)111 and (has also been heaped) praise112 over the course of years. Pursuant a groundswell of trenchant criticism, Riskin outlined a new grid in the remit of which the much-acclaimed scholar swapped the expression «evaluative» by «directive».113

108

Dorcas Quek, “Facilitative Versus Evaluative Mediation: Is There Necessarily a Dichotomy?”, cit.: 67 (summarizing Leonard´s Riskin grid). 109 Leonard L. Riskin, “Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed”, cit. 7–49 (24) (notes that the mediator who happens to facilitate «assume that the parties are intelligent, able to work their counterparts, and capable understanding their situations better than the mediator» which means that the disputants can «develop better solutions than any the mediator might create». It falls to the facilitative mediator to «clarify and enhance communication between the parties in order to help them decide what to do»). 110 Id. (argues that the mediator who engages in an evaluative style «assumes that the participants want and need her to provide some guidance as to appropriate grounds for settlement—based on law, industry practice or technology—and that she is qualified to give such guidance by virtue of her training, experience and objectivity»). 111 Robert Kimberlee Kovach, “The Vanishing Trial: Land Mine on the Mediation Landscape or Opportunity for Evolution: Ruminations on the Future of Mediation Practice”, Cardozo Journal of Conflict Resolution, 7 (2005): 60–61 (predicting that the vanishing trial will lead to mediation becoming like arbitration); Kimberlee K. Kovach and Lela P. Love, “Mapping Mediation: The Risks of Riskin’s Grid”, Harvard Negotiation Law Review, 71 (1998): 92–93 (on vanishing trial) and passim (bemoaning—better said: excoriating—Riskin’s grid, especially the evaluative style of mediation); Kimberlee K. Kovach and Lela P. Love, “Evaluative Mediation is an Oxymoron”, Alternatives to the High Cost of Litigation 14 (1996): 31 ff and passim (frontally debunking the evaluative style of mediation coining it as an «oxymoron»). 112 Chris Guthrie, “The Lawyer’s Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering”, Harvard Negotiation Law Review, 6 (2001): 145–147 (stating that «[a]lthough most in the mediation community accept Riskin’s positive assertion that mediation as currently practised includes both facilitation and evaluation, a vocal group of critics rejects Riskin’s pluralist view of mediation on normative grounds») (italics added). 113 Leonard L. Riskin, “Decision-Making in Mediation: The New Old Grid and the New Grid System”, Notre Dame Law Review, (2003): 18 ff (amidst harsh criticism, Riskin has outlined a new grid in which the author replaced the taxonomy «evaluative» by «directive». Upon review the batch of harsh criticism to his old grid, Riskin noted that by «evaluative» he bore in mind that the mediator can, in some situations, guide (direct) disputants toward a certain outcome). See also: Dorcas Quek, “Facilitative Versus Evaluative Mediation: Is There Necessarily a Dichotomy?”, cit.: 69. The directive style of mediation seems to have caught on. See, amongst many other examples, Nancy A. Welsh, “The Current Transitional State of Court-Connected ADR”, Marquette Law Review 95 (2012): 873–884 (noting that court-connected mediator elicits a directive approach to mediation). Nancy A. Welsh, “Do you Believe in Magic? Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation”, SMU L. Review 70 (2017): 721 ff (adducing that a directive approach to mediation is usually preferred in the West, the cradle of cultures of dignity).

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1.1.2.6

1 Introduction

The Game Theory Mindset (Zero-Sum Mindset V. Positive Sum Mindset)

1. There was a turn to social sciences which deserves to be remarked upon. The model of game theories114 of bargaining,115 which has embodied such a turn, has garnered the attention of legal scholars worldwide.116 2. One the major contributes brought forth by the game theories is (was) related with the utter need to abhor the zero-sum mind-set117 while upholding a positive-sum mindset in mediation settings. Further down in this book, the dear reader will understand why upholding a positive-sum mindset while partaking in either joint mediation sessions and caucuses sessions plays a pivotal role in the purview of my Four-Tiered Model of Mediation. 1.1.2.7

The Authority-Based Mediation Model that Builds Both on Riskin’s Evaluative Style of Mediation and on a Positive-Sum Mindset in Mediation Settings

1. The newly created model of authority-based mediation, in embodying an evaluative style of mediation aimed at clinch a win–win solution in multiparty and highly complex disputes,118 seems to be making headway in upholding a soughtafter positive-sum mindset in joint mediation sessions and caucuses sessions. If

114

Roy J. Lewicki et alii, Negotiation: Readings, Exercises and Cases, 5th edition, New York, McGraw-Hill, (2005) (on game theories of bargaining). 115 Peter T. Coleman/Morton Deutsch/Eric C. Marcus, The Handbook of Conflict Resolution: Theory and Practice, 3rd edition, San Francisco, California, Jossey-Bass, (2014): 1–1264 (in which some authors alluded to the game theories of bargaining). 116 See: Roberto Kuster, “Utility Function and Rational Choice as Support Mechanisms to Maximize Mediation and Negotiation Settlement Output”, Pepperdine Dispute Resolution Law Journal, 17 (3), (2017): 263 ff (aims to go beyond the well-acquired notions of BATNA (Best Alternative to a Negotiated Agreement) and the «Shadow of the Law» with a view to grasp the ZOPA (Zone of Possible Agreement). 117 John von Neumann/Oskar Morgenstern, Theory of Games and Economic Behavior, 1st edition (1944), 60th Anniversary Commemorative Edition (April 2007), Princeton Classic Editions, New Jersey, Princeton University Press (2007): 1–786 (passim) (John von Neumann and Oskar Morgenstern have conceived a groundbreaking mathematical theory of economic and social organization, based on a theory of games of strategy); see also Thomas C. Schelling, The Strategy of Conflict, Cambridge, Massachusetts, Harvard University Press (1980): 1–328 (passim) («Schelling’s work prompted new developments in game theory and accelerated its use and application throughout the social sciences. Notably, his analysis of strategic commitments has explained a wide range of phenomena, from the competitive strategies of firms to the delegation of political decision power»). Self-evidently, zero-sum mind-set and positive sum mind-set derived from the mathematical language and boast ties with the field of game theory. 118 Amos Gabrieli/Nourit Zimmerman/Michal Alberstein, “Authority-Based Mediation”, Cardozo Journal of Conflict Resolution, 20 (1) (2018): 1–103 (on the fundamental tenets of authority-based mediation).

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one of the bedrocks of mediation (the seminal principle of self-determination119 ) is never far off, the authority-based model of mediation is shaping up to make rapid strides in building a new-fangled style of mediation, which, in my view, can add enhanced value to the chequered universe 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. Having the foregoing overview on the cluster of styles of mediation very firmly in mind, a thought crops up: such styles of mediation have (only) covered an infinitesimal fraction of the mediation universe. 2. A close-range look at that batch of styles of mediation elicits the impression according to which only the third tier (legal dynamics of mediation) has been parsed. Which prompts the following research questions: why have such styles of mediation fallen short of establishing standards of quality amenable to be applied across jurisdictions? Would the four-tiered model of mediation be able to plug such gap? If so, how? Let us make a skeletal overview at it. 3. A social dynamics of mediation would explain the reason why, in light of a set of social circumstances, citizens (regular disputants) resort to mediation to solve their disputes; a cultural dynamics of mediation would give the lawmaker or the policymaker the chance to punctiliously craft and tailor-made a given style of mediation to a given cultural background as opposed to (solely and blindly) rely upon styles of mediation fraught with western ethnocentrism, a central contention of my adaptive mediation.120 4. A legal dynamics of mediation would offer to a given lawmaker or policymaker the possibility to, premised on the uniqueness of each cultural background and underlying social reality, to lay down uniformized (and bespoke) standards of quality to mediators, which are closely related to the styles of mediation, with a view to adroitly address the gruesome (and thus worrisome) issue of mediator misconduct. 5. A cross-border and cross-cultural dynamics of mediation would spur adaptive mediation in the purview of cross-border and cross-cultural disputes, especially those arisen from the breadth and scope of investor-state mediation121 —the cradle 119

Kimberlee K. Kovach, “Mediation”, Handbook of Dispute Resolution, Michael Moffitt/Robert Bordone (Editors), San Francisco, Jossey-Bass, (2005): 304 ff (notes that this principle allows disputants to craft their own outcomes in mediation settings). 120 See: Part 5, Chap. 6, point 6.4 to point 6.4.1.5 of this book (on the main features of adaptive mediation, a new style of mediation). 121 James M. Claxton, “Compelling Parties to Mediate Investor-State Disputes: No Pressure, No Diamonds?”, Pepperdine Dispute Resolution Law Journal, 20 (1) (2020): 78 (stating that «there are few areas of international law that are more dynamic, or more fraught with controversy, than investor-state dispute settlement (ISDS)»).

26

1 Introduction

of multi-million, highly complex and multicultural disputes to be covered within the remit of China’s visionary and bodacious initiative of «One Belt, One Road». 6. Against the background of the pinpointed gaps in the extant literature, the time is ripe as to skeletally sketch out the four tiers in which the four-tiered model of mediation sits coupled with the manner through which the pinpointed gaps can be plugged.

1.1.4 The Extent to Which the Four-Tiered Model of Mediation Plug the Pinpointed Gaps of the Systems Design Theory 1. As hinted above, the systems design theory targets mostly western jurisdictions. Few to none room was made for the to-be-taken-into-account tandem between law and underlying social reality of each jurisdiction, which is both unwarranted and uncalled for. 2. A revamped approach, and thus a fresh light, is needed in this regard. Unlike the systems design theory, the four-tiered model of mediation relies upon the much-needed interplay between law and social reality with a view to ferret out the bespoke mediation framework for a given jurisdiction. There is no such thing as a «one-size-fits-all mediation framework», much less a «catch-all framework of mediation», amenable to be transplanted across jurisdictions, a central claim of the four-tiered model of mediation. 3. Against the background of the foregoing drawbacks of the systems design theory, the time is ripe as to flesh out the four tiers in which the Four-Tiered Model of Mediation is premised on.

1.1.5 Research Questions 1. The research questions122 to be thoroughly answered along this book can be narrowed down to 4 (four): (i) whether and to what extent Luhmann’s Social Sub-Systems (ranging from philosophy, religion, culture and law and dispute resolution) intercommunicate externally with each other thus being in a state of both constant cross-fertilization and permanent interaction? (ii) to what extent culture (a Luhmann’s social sub-system) shapes mediation? (iii) what is the best style of mediation suitably tailored to the multicultural world we live in? (iv) what is the relationship between adaptive mediation, the two-pronged model 122

Philip Langbroek, Kees van den Bos, Marc Simon Thomas, Michael Milo, Wibo van Rossum “Methodology of Legal Research: Challenges and Opportunities”, Utrecht Law Review, Volume 13 (3), (2017): 1–2 (one should allow some flexibility in both outlining research questions and applying a methodology in legal studies as «we believe that research questions, aims and contexts require flexibility in choosing and applying a methodology in legal studies») (italics added).

1.1 Introduction: Social Sub-systems in a State of Constant …

27

of effective fairness-abiding mediator and the three-pronged test of mediator misconduct?

1.1.6 Research Methodology 1.1.6.1

The Importance of the Uses of History to Premise the Assertions Made Throughout the Book: Between a Law-in-Context Methodology and (an) Originalism (st) Methodology

1. If one endeavours to clutch the nub of a given system of administration of justice pertaining to a given jurisdiction, a law-in-context methodology is both unmissable and indispensable. This entails delving (excavating123 and thus drilling) into the origins of a given system of administration of justice.124 No surprise stems from the fact that history is bound to play a pivotal role in this regard. So does Originalism.125 2. There is a fairly good academic reason for the use of law-in-context methodology in this regard: this book is aimed at understanding in retrospect 126 how has dispute resolution (especially mediation and arbitration) unfolded in Macau and AngloSaxon England with a view to support my central claim that Luhmann’s social sub-systems (ranging from law, culture, religion, political ideology, philosophy and economics) have permanently interacted with each other. Thereby shaping each other throughout the vast swathes of legal history and for a long-winded span of time. Mediation, which is included within the remit of law, a paramount social sub-system, was chosen by the disputants for cultural, religious and philosophical reasons. Absent a law-in-context methodology, such a central contention would be untenable as would the yearning hope to support it, which would also be forlorn and pious.

123

Edward J. Eberle, “The Method and Role of Comparative Law”, Washington University Global Studies Law Review, 8 (3) (2009): 452 (noting that «we need to excavate the underlying structure to understand better what the law really is and how it really functions within a society»). 124 Rodolfo Sacco, “Diversity and Uniformity in the Law”, The American Journal of Comparative Law, 49 (2001): 172 (arguing that «law is not independent, nor separated from other social phenomena. In addition to law, language, knowledge, and the quality of human endeavour (material objects ans intellectual creations) together constitute human culture»). 125 Jack M. Balkin, “New Originalism and the Uses of History”, Fordham Law Review, 82 (2013): 652 (History crisscross paths with Originalism. Here is why: «history is a resource, not a command. It is resource in three senses. First, lawyers use of history to support arguments from each and every modality of argument» (italics added). 126 Jack M. Balkin, Living Originalism, Cambridge, Belknap Press: An Imprint of Harvard University Press, (2011): passim (putting forth a new concept of framework originalism in which both constitutional lawyers and laypeople should be truly faithful to the original meaning of the Constitution). See also: Jack M. Balkin, “New Originalism and the Uses of History”, Fordham Law Review, cit., passim.

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1 Introduction

3. Each one of singled out jurisdictions had had a markedly different set of reasons (ranging from philosophical, religious, cultural to legal reasons) to resort to mediation and arbitration back then. A law-in-context methodology aims to unveil such a set of original reasons and bring them into light127 with a view to support my central contention according to which social sub-systems have interacted with each other thus being in a constant state of cross-fertilization. As hinted above, proving that Luhmann’s social sub-systems have permanently interacted with each other throughout most of the legal history would be utterly impossible devoid of, and detached from, an in-depth law-in-context methodology.128 1.1.6.2

A «State-of-the-Art» Interdisciplinary Methodology: The Paramount Importance of an Evidence-Informed Law Coupled with the Rules of Inference to Bolster the Creation of Newly-Crafted Doctrinal Concepts

1. To add further plausibility to the newly-crafted doctrinal concepts brought forth in this book, an interdisciplinary129 methodology130 will be used. The overriding importance of an evidence-informed law131 (which stands in stark contrast with the to-be-abhorred hunches132 ) coupled with the rules of inference133 with a view to set forth new doctrinal concepts that are bound to make an impact on the outer world will prove invaluable to support, and give credence to, the claims 127

Peter Mascini, “Responses of Law and Economics to the Threat of Its Initial Success”, Comparative Law, Law and Method, November 2018, (2018): 15 («preferences are flexible, incoherent, and embedded in a social and cultural context» (italics added). 128 Mark Van Hoecke, “Methodology of Comparative Legal Research”, Law and Method, (2018): 17 (positing to the need to «putting law-in-context aims at understanding the law, as a foreigner to that legal system and, hence, explaining why the law is as it is. Inevitably, this implies empirical observation». When it comes to the law-in-context methodology, this renowned scholar stated that «a historical study will inevitably also use sociological, economic, psychological, and/or other context data. In this way it may encompass, on occasion, a full law-in-context approach») (italics added). 129 In Spanish, Jacqueline N. Font-Guzmán, “Programa de Derivación en Puerto Rico desde la Perspectiva de la Mediación”, Contemporary Tendencies in Mediation, Humberto Dalla Bernardina de Pinho/Juliana Loss de Andrade (Editors), Madrid, Editorial Dykinson, (2015): 31–32. 130 Bart van Klink/Sanne Taekema, Law and Method: Interdisciplinary Research into Law, Tübingen, Mohr Siebeck, (2011): 1 ff («The disciplines are classified in broadly three categories: empirical social science (sociology, economics, psychology), humanities (history, political theory, ethics, philosophy), and language-oriented disciplines (rhetoric, law and literature, argumentation theory»). 131 Tom Tyler, “Methodology in Legal Research”, Utrecht Law Review, 13 (3), (2017): 130. 132 Tom Tyler, “Methodology in Legal Research”, cit.: 130–131. 133 Lee Epstein/Gary King, “The Rules of Inference”, University of Chicago Law Review, 69 (1) (2002): 19 ff and passim (the workability of rules of inference—from either data collated directly or indirectly by the researcher—relies upon, and entails: (i) amassing data; (ii) summarizing data; (iii) making descriptive, qualitative and causal inferences from the batches of data analysed). The book is to rely upon the rules of inference´s methodology with a view to withdrawing some conclusions and inferences from the handful of bodies of empirical research reviewed throughout the book.

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29

made throughout this book. The bevy of bodies of empirical evidence parsed throughout the book (from which manifold policy-law-making inferences will be withdrawn) accounts for a prototypical example of the sweeping importance of an evidence-informed law coupled with sturdy and agreed-upon rules of inference. 2. In Part 4 (The Third Tier of the Four-Tiered Model of Mediation—Legal Dynamics of Mediation) of this book (devoted to legal dynamics of mediation), a law-incontext methodology will also be used to canvass the travaux préparatoires134 of the Singapore Convention on Mediation. A (Hybrid) Interdisciplinary Methodology Undergirding the Four-Tiered Model of Mediation: The Uses of Empirical Social Sciences, Humanities, and Language-Orientated Disciplines to Bolster the Creation of Newly-Crafted Concepts 1. This book builds on a wide range of empirical social science studies (ranging from sociology, anthropology, law and economics to social applied psychology), humanities (ranging from history, political theory, to philosophy of law), and language-oriented disciplines (ranging from rhetoric, law and literature, philosophy of language, to argumentation theory)135 to bolster the myriad of claims made herein. 2. The quintessential concept of wealth procedural maximization (which draws from law and economics), adaptive mediation and cultural differentiation of voice (which draws from social applied psychology, anthropology and law) account for archetypical examples which have begged for a much-needed interdisciplinary methodology in the purview of the Four-Tiered Model of Mediation. 3. Holding all else constant, a hybrid methodology will be used to support the claims made throughout the book. In sum, my Four-Tiered Model of Mediation resonates with, and is the encapsulation of, a new-fangled methodology in mediation settings for decades to come.

1.1.7 Matters and Subjects that Fall Outside the Breadth and Scope of This Book 1. The book aims (only) to set forth the baseline elements to carve out a functional and workable Four-Tiered Model of Mediation to be applied across jurisdictions. As an upshot, parsing peripheral dispute resolution mechanisms (ranging from negotiation, early neutral evaluation, consensus building, conciliation, arbitration to litigation and so forth) falls well outside the breadth and scope of this 134

Mark Van Hoecke, “Methodology of Comparative Legal Research”, cit.: 22. Bart van Klink/Sanne Taekema, Law and Method: Interdisciplinary Research into Law, Tübingen, Mohr Siebeck, (2011): 1 ff.

135

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book. Investor-state mediation, albeit briefly analysed in this book, will not be canvassed from the various Bilateral Investment Treaties (BIT’s) and Multilateral Investment Treaties (MIT’s) that comprise such a paramount dispute resolution mechanism (Investment-State Dispute Settlement—ISDS) point of view, which falls beyond the breadth and scope of this book.

Part II

The First Tier of the Four-Tiered Model of Mediation: Social Dynamics of Mediation

Chapter 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 1. The rationale behind the creation of a four-tiered model of mediation has been skeletally fleshed out in Part 1, Chap. 1 of this book. Part 2’s (devoted to Social Dynamics of Mediation) sweeping goal is to bring forth historical examples to support my central claim that, unlike stated by the polyhistor Professor Niklas Luhmann, social sub-systems (ranging from law and dispute resolution, culture, religion, philosophy, economy, to political ideology) have permanently interacted with each other throughout most of the legal history and for a long-winded span of time. To cater to that, a fine-grained historical account in/of some important jurisdictions like Macau and Anglo-Saxon England will be made. 2. An in-depth historical account will be made into the silence forces of law of Anglo-Saxon England, which is also bound to unearth other interesting findings. Amongst which stands the penitential justice in force in Anglo-Saxon England, which was the harbinger of the UK Woolf’s reforms of 1999 (mirrored on the imposition of costs to—unbending and obdurate—disputants that spurned to contemplate mediation in good faith). The «seminal» multidoor courthouse idea laid down by Frank Sander in the famed Pound Conference of 1976 will also be painted in a fresh historical light: the light of its lack of novelty. A hackneyed light after all. Setting the Stage: The Outset of a Two-Layered Law and Reality in Macau

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_2

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2 Historical Account on Macau’s Exquisite Two-Layered Law and Social …

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» 1. Portugal’s official presence in Macau dates as far back as 1557. The arrival of a foreigner (a stranger) from half way across the world posed sizeable (social and legal) challenges to Macau in an overarching sense. Whilst one could anticipate that this clash between two glaringly different civilizations would be neither seamless nor without a high amount of social (and even legal) challenges, the ginormous social and legal changes that this tiny Peninsula undergone further the arrival of the Portuguese traders would fall far beyond one’s rosy expectations. 2. Amongst which stands the creation of a two-layered law and social reality and an exquisite (unique) two-layered cultural originalism, which has survived to this day. The very distant year of 1557 marked the inception of a two-layered cultural originalism in Macau: Confucianism-charged beliefs upheld and nurtured by most Chinese residents living side-by-side with Christian-laden beliefs nourished by the early Portuguese settlers and late Portuguese Jesuits.1 More on this later. 3. At first glance, this finding is hardly baffling. A close-range look to the extant literature2 gives us the vivid impression that pundits have just pinpointed a legal dualism though. In sum, just a legal dualism was identified. Neither a two-layered law and social reality nor a two-layered cultural originalism were ferreted out let alone fleshed out. Just an amorphous and botched legal dualism,3 which pervaded most of Macau´s legal history.

1

See: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, Estudos Comemorativos XX Anos do Código Penal e Código de Processo Penal de Macau, Pedro Pereira de Sena e José Miguel Figueiredo (Coordenação Científica), Macau, Fundação Rui Cunha, 2016, p. 62 ff, which I will follow closely. 2 One of the most renowned scholars in Macau gives us both an historical account on Confucian’s normative system subsistence and on the maintenance of pristine Chinese customary practices. Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, Saidat Law Review (SLR), Legal culture and Legal Transplants, 1 (Issue 2) (2012): 644–645 (630 ff), which I will follow closely. 3 One of the most emphatic accounts of that legal dualism (with which I fully agree to the extent that captures to picture of a bifurcation between Chinese laws and Portuguese laws since ancient times) can be found in an academic paper published in Hong Kong Journal, which reads as follows: «A dualism has been shown in all aspects of life: in the exercise of political power, the administration of justice, religious structures, trade affairs, even the urban administration»; R. Pereira Alfonso, “The Political Status and Government Institutions of Macau”, Hong Kong Law Journal, 16 (1) (1986): 28–48. Italics added.

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4. There is no such thing as a legal dualism (or doctrinal taxonomies alike) devoid of, and detached from, a nuanced law-in-context research methodology. It is my unshakeable belief that there is no such thing as ascribing a doctrinal taxonomy to a given legal framework decoupled from a robust an able-bodied academic legwork. 5. The unique features of a two-layered law and social reality began at the commencement of Portugal’s presence in Macau (as far back as 1557), as further shown below. The emergence of a two-layered cultural originalism would not lag far behind. 2.1.1.1

The Onset of a Two-Layered Law and Social Reality Mirrored on the Coexistence of Chinese Laws (Law of Great Ming) and Portuguese Laws (the Ordinance Period—Ordenações Afonsinas, Ordenações Manuelinas and Ordenações Filipinas) (1573–1849)

1. For a long-winded span of time, Chinese bodies of laws (Law of Great Ming)4 and general Portuguese laws (arisen from the enactment of the dubbed Ordinations)5 have coexisted in the scaled-down territory of Macau: «In the sixteenth century, in Ming China, in an informal sense, were included in a compilation named «Da Ming Lu» (Law of Great Ming), a compilation of rules (above all criminal rules). For civil law matters, although the idea of a judicially enforceable agreement («yue») appeared already in the Han Dynasty, the state never deemed it necessary to promulgate a body of rules describing the details of such matters during the whole imperial period (up to the last years of the Qing Dynasty)».6 This is the legal layer .

4

Y.G. Su, Ming Qing Lú Dian Yu Tiao Li (Codes and Regulations in the Ming and Qing Dynasty), China, CUPL Press, (2000): 93–98. 5 In the Portuguese doctrine, on the deemed Epoch of Ordinance, Mário Júlio de Almeida Costa, História do Direito Português, Coimbra, Almedina, (1996): 272–338 (on the origins, scope and width of the Epoch of Ordinance and its impact on Portugal´s legal history). 6 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post-Colonial” Context”, Juridikum, Zeitschrift für kritik/recht/gesellschaft: thema recht (de) kolonisiert, 2010 (3), (2010): 289 ff, whose stellar research I will follow closely.

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2. At the cultural layer, alongside with this relative informal bodies of laws, which formed part of the backbone of Chinese legislation ranging from Han Dynasty to Qing Dynasty, a pristine Confucianism normative system comprising norms of rites («Li») coexisted with customary practices7 in China8 (and Macau) for more than 2000 years in China’s millenary imperial history.9 3. On the opposite pole, Portuguese legal history has been pervaded by a drawnout period of compilation of laws.10 Such span of time traversed along the 16th Century to the 19th Century—the tagged Epoch of Ordinance.11 At its core, the Ordinations were a patchwork of compiled ordinances12 covering a time period spanning Ordenações Afonsinas of 1446, Ordenações Manuelinas of 1514, Colecção de Leis Extravagantes de Duarte Nunes do Lião of 1569, to

7

Zh. P. Liang, Customary law in Qing Dynasty: Society and State, China, China University of Political Science and Law Press (CUPL Press), (1996): 1 ff. See also: Hugh T. Scogin, Jr., “Civil “Law” in Traditional China: History and Theory”, Civil Law in Qing and Republican China, Redwood City, California, Stanford University Press, (1995): 28 ff. (emphasizing the paramount importance of this set of norms of rites and customary practices in China Imperial legal history). 8 Land law in China (profoundly interwoven with foundational concepts of public and private property) deserves the wealth of a footnote: «As far as land is concerned, one final remark must be made on Chinese law before we can move on to discuss the Macau case critically. In relation to the idea of land ownership or rights on lands, the earliest and most frequently cited text is a song from the Book of Poetry which reads as follows: Under the wide heaven, all is the King’s land. Within the sea-boundaries of the land, all are King’s servants” (Northern Hill, Minor Odes of the Kingdom, The Book of Poetry). By a very restrictive and isolated reading of the above song, it seems that in ancient China (Zhou Dynasty or earlier, some 3000 years ago) there was no room at all for ordinary people to possess any right on land. However, it is strongly questioned to what extent the royal control over land was effectively exercised in such a big country and whether civic and economic activities did not imply al least a minimal basis of “private property”. Passages in other classic documents such as the Mencius and Book of Rites seem to indicate that a kind of feudalism was generally practised in the Zhou Dynasty, so that several layers of possession could be established on the on the same piece of land nominally belonging to the King. The widespread prevalence of private property as well as the official recognition of private land as distinct from public land occurred in the period of the Tang Dynasty (79 A.D.). The “Six Codes of Tang” (elaborated in 738 A.D.) implied a detailed system to distribute land to ordinary people. And most important of all, public and private land was equally protected. The land system established in the Tang Dynasty was inherited in the following centuries»: Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 290. 9 Id. at 289. See also: António Manuel Hespanha, Panorama Histórico do Direito Chinês. O Pensamento Jurídico, Macau, Faculdade de Direito da Universidade de Macau, (1994–1995): passim. 10 This Epoch of Ordinance has been hailed as one of Portugal’s turning point in terms of administration of justice and of a thrust to centralize and exert power over the fullest extent of its colonial territories; In the Portuguese doctrine, Henrique da Gama Barros, História da Admninistração Pública dos Séculos XII a XV, Tomo I, Lisboa, Imprensa Nacional, (1885): 72 ff. 11 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 289. 12 Mário Júlio de Almeida Costa, História do Direito Português, cit.: 272–338.

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the much-appraised Ordenações Filipinas of 1595.13 Ordenações Afonsinas14 stood as the lodestar to the subsequent ones.15 4. At the second layer of law and social reality, the clout of a paramount Luhmann’s social sub-system named Religion (pactum subjectionis16 ,17 ,18 ) on the

13

In the Portuguese doctrine, Mário Júlio de Almeida Costa, História do Direito Português, cit.: 272–338. 14 To a certain degree, the Portuguese Royal power has shared its clout with the no-less robust religious power (Catholic Church and its accompanying Christian faith). To some extent, they were both «powers in arms» or «brothers in arms» (so to speak). No accurate analysis on Portuguese sovereignty in Macau can possible overlook such an interplay. See in the portuguese historical doctrine: Armindo de Sousa, História de Portugal, A Monarquia Feudal (1096–1480), José Mattoso (coord.), Lisboa, Editorial Estampa, (1993): 371 ff. (No reference to Macau was made though). The Portuguese King Afonso III played a pivotal role in both centralizing the ruling power and shifting it (almost) entirely towards the Royal clutch. See in Portuguese doctrine, A. L. Carvalho Homem, Nova História de Portugal, III—Portugal em Definição de Fronteiras (1096–1325). Do Condado Portucalense à Crise do Século XIV, Maria Helena Cruz Coelho/A. L. Carvalho Homem (Coord.) Lisboa, Editorial Presença, (1996): 133 ff. 15 Mário Júlio de Almeida Costa, História do Direito Português, cit.: 272–338. 16 Pactum subjectionis has been inscribed at Digesto’s (1, 4, 1) in the following excerpt (in Latin), which reads as follows: «quod principi placuit legis abet vigorem; utpote cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne sum imperium et potestaem conferat». See in the Portuguese doctrine, José Adelino Maltez, Nova História de Portugal, Vol. V,—Portugal. Do Renascimento à Crise Dinástica, J. J. Alves Dias (coord.), Lisboa, Presença, (1998): 370 ff; Luís Cabral da Moncada, Filosofia do Direito e do Estado, 2a edição, reimpressão, Vol. I, Coimbra, Coimbra Editora, (1995): 73 ff; Manuel Paulo Merêa, “As teorias políticas medievais no “Tratado da Virtuosa Bemfeitoria”, Estudos de História do Direito, Coimbra, (1923): 179 ff. 17 This finding (pactum subjectionis) chimes in with the Thomistic Philosophy background according to which King’s supremacy derived from the dubbed pactum subjectionis: all power derived from a greater source (God Almighty) which was subsequently ascribed to the people and thereafter to the ruling monarch; Thomas Aquinas, Summa Theologica, V Volumes, Christian Classics; English Dominican Province Translation edition (June 1, 1981), (1981): passim (on these astounding essays a detailed account on Christian thought is provided—a book which has had a paramount and ground-breaking impact on philosophy and religion since the thirteenth century sending ripples across the navigable eternity). 18 António Manuel Hespanha, História das Instituições. Épocas Medievais e Moderna, Coimbra, Almedina, (1982): 199 ff; Marcelo Caetano, História do Direito Português, I Volume, Lisboa, Verbo, (1981): 469 ff.

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enactment19 and interpretation of the hailed Ordinances20 was (thus) ubiquitous. This patchwork of Ordinances was far from being an aimless miscellany of rules and laws nonetheless. Ordinances were aimed at regulating nearly-all aspects of Portugal’s legal life21 ranging from administration of justice, ground taxes, local taxes, royal and municipal posts, felonies, misdemeanours (and other misdeeds or flagitious behaviours alike) to civil matters and beyond (even legal procedures).22 5. Buttressing a vividly clear connection between Portuguese law and Catholic Church23 (at the second layer of law and social reality), the citizens’ personal

19

A converging stance can be found in: Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 289 ff and passim, which I follow closely. 20 Mário Júlio de Almeida Costa, História do Direito Português, cit.: 272–338. 21 Thus further blurring the lines between private sphere (private law) and public sphere (public law). See: John Christman, Myth of Property: toward an egalitarian theory of ownership, Oxford, Oxford University Press, (1994): passim. For a brief sketch about public land property system in Imperial China, Y. Li/ J. G. Wu, A historical account of public land property system in ancient China, China, Yunan People Press, (1997): 9 ff. 22 Mário Júlio de Almeida Costa, História do Direito Português, cit.: 272–338. 23 Id.

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status was governed by a markedly different body of laws24 —a CanonCatholic-inspired-Law and Roman-Catholic-inspired-Law.25 ,26 ,27 Against this background, hardly any surprise springs from the fact that a set of Luhmann’s social sub-systems (ranging from religion, law, and culture) were interacting with, thus cross-fertilizing with, each other on a constant basis back then. A liaison that the Ordination Epoch (Época das Ordenações) would thicken.

24

Id. Id. 26 Roman’s law influence in Portugal legal system was indisputable. Especially from the land law standpoint. Controversies on the breadth and scope of Portuguese laws (Roman-law-inspired) and the extent of the permission granted by the Ming Dynasty to the Portuguese to settle in Macau have been hanging aloft for a protracted period of time. Unsurprisingly, the Chinese tolerance towards the Portuguese has been pinpointed by renowned doctrine: «Before the colonial period, the Portuguese land law (comprising those in the Ordinance and Roman law) was already the only land law applicable in Macau. However, two inferences drawn from those set of documents do not allow for this assumption. First, the order of the Qing officials clearly demonstrated that Chinese living inside Macau, before the Portuguese moved in, were allowed to stay and own their property or to transact it in accordance with Chinese law. Second, the above-mentioned Portuguese prohibitions imply that there were Portuguese residents ignoring the rule and selling and mortgaging house to Chinese. Therefore, the most reasonable conclusion shall be that before the colonial period, the Portuguese land law applied land law dominantly inside Macau inside Macau but in general, it was still a system of legal pluralism. (…) Portuguese land law was at least applied on transactions of landed property in Macau, though not exclusively. It is also clear that in the Portuguese legal system of the sixteenth century, Roman law was the main body of law governing land transactions and civil life in general. According to the Roman legal concept, a sale or purchase of land is only valid if the seller has ownership. However, it is assumed that the Portuguese were asked to pay a ground rent (foro de chão). Hence, the tenure they had over Macau lands must be considered as a lease, which is a concept clearly different from ownership under Roman law. However, this dogmatic contradiction was considered neither by the Portuguese nor by Chinese living in the area. Even according to official records from both sides, lands in Macau were protected and transferred, as if the Portuguese did have ownership. Of course, this was in accordance with Portuguese interests. However, it is less clear why also Chinese disregarded this contradiction. For them, the permission given by the Ming Dynasty and later by the Qing Dynasty implied only the right of the government to supervise the activities of the Portuguese and to collect rent from them every year. They had no difficulties qualifying a Portuguese settler who built a house inside the rented territory as the owner of that land and house. In fact, for ancient Chinese intellectuals and government officials the border line between politics and law was blurred. Besides, since the so-called “lease” was not a written agreement, in the Qing Dynasty, it was almost impossible to define the exact area rented to Portuguese settlers. However, it should be noted that throughout the late Ming Dynasty and Qing Dynasty, the Portuguese were not allowed to build new houses without permission of Chinese officials, and the original area attributed to the first comers extended only the size of one narrow street (from the Fortaleza Monte to the Colina de Penha). Despite all these constraints, starting from the seventeenth century, the Portuguese, through various means, gradually occupied the lands surrounding the original settlement spot. As a consequence, Portuguese assumption primitive rights over the lands they occupied the lands they occupied without the permission of Chinese remained controversial in later periods»: Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 291–292. 27 See also about this period: Geoffrey C. Gunn, Encountering Macau: A Portuguese City-State on the Periphery of China, Gunn Editions, (2005): 8 ff. 25

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6. When the Portuguese first established themselves in Macau (back in 1557), Ordenações Manuelinas28 were in force29 in Portugal. Unsurprisingly, from that moment onwards «all major changes in the continental Portuguese legal system affected Macau law».30 7. Without prejudice of some exceptions, Ordenações Manuelinas were also applicable in Macau from that date (1557) onwards.31 Consistent with an early stage of a two-layered law and social reality, Portuguese law was only applicable to Portuguese or Chinese converted to Christianity.32 Chinese bodies of laws (Laws of the Great Ming) were applicable only to Chinese (who upheld a Confucianism-laden culture and philosophy).33 2.1.1.2

1.

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28

(Brief (Thumbnail) Sketch on a) Two-Layered Law and Social Reality in the Administration of Justice in Macau—The Captain Chief of Journey of China and Japan (Capitão-Mor de Viagem da China e do Japão) and the Chinese Justice named Mandarin (1573–1623)

A two-layered law and social reality was spottily clear at the administration of justice level. Two markedly different bodies of administration of justice coexisted seamlessly. At the first layer of law and social reality, there was a system of administration of justice for Chinese who nourished Confucianism-charged beliefs. At the second layer of law and social reality, there was a system of administration of justice for both Portuguese and Chinese converted to Christianity (to whom both the Portuguese law and Portuguese administration of justice applied). At the second layer of law and social reality, the Captain Chief of Journey of China and Japan (Capitão-Mor de Viagem da China e do Japão)34 received from the Portuguese crown a broad-scope mandate to exert powers35 at the administration of justice level in Macau.36 Something that, as further shown

A converging stance can be found in: Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 289. 29 Mário Júlio de Almeida Costa, História do Direito Português, Coimbra, Almedina, (1996): 272– 338. 30 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 289. 31 Id. 32 António Manuel Hespanha, Panorama Histórico do Direito Chinês. O Pensamento Jurídico, Macau, Faculdade de Direito da Universidade de Macau, (1994–1995): 31–46. 33 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 291. 34 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 62. 35 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 69 ff. 36 Charles Ralph Boxer, Fidalgos no Extremo Oriente, cit.: 12 ff.

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below, would fuel an unbearable tension, strife and ever-lasting war turfs at the second layer of law and social reality in Macau. Captain Chief of Journey of China and Japan (Capitão-Mor de Viagem da China e do Japão) was chosen annually either by the Portuguese King37 or the Vice King of India amongst a wide range of noble citizens38 amenable (some would say entitled)39 to be awarded such an accolade.40 Such a prestigious award would arise out of outstanding contributions to the Portuguese crown41 in a given time-period.42 If such an award was (or were to be) afforded to a Capitão-Mor de Viagem da China e do Japão, the latter would wield a ginormous power in (at) the Far East.43 Especially from the trade and commerce point of view.44 CapitãoMor de Viagem da China e do Japão would rule with an undisputed power.45 Alongside the trade and commerce monopoly,46 Capitão-Mor de Viagem da China e do Japão was (would be) ascribed a representative role.47 This role entailed representing Portuguese crown’s interests in commercial strongholds48 held in-between Malaca and Japan.49 Capitão-Mor de Viagem da China e do Japão was allotted a bevy of administrative tasks50 ranging from anodyne (at first blush, nugatory ones) to very important ones. Such as the administration of justice.51 Capitão-Mor de Viagem da China e do Japão

António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 69 ff. Id. 39 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 40 Id. 41 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, Macau, Fundação Macau, (1995): passim, whose research I will follow closely in this regard. 42 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63 ff and passim, whose stellar research I have been following closely in this regard. 43 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 69 ff. 44 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 45 Charles Ralph Boxer, Fidalgos no Extremo Oriente, cit.: 12 ff. 46 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 69 ff. 47 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 62–63. 48 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 69 ff. 49 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 62–63. 50 Charles Ralph Boxer, Fidalgos no Extremo Oriente, Fundação Oriente e Museu e Centro de Estudos Marítimos de Macau, tradução de Teresa Bairrão Oleiro e Manuel Bairrão Oleiro, (1990): 12 ff and passim, whose research I will follow closely in this regard. 51 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 69 ff. 38

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exerted this power towards either Portuguese citizens52 or newly-converted Christians (cristãos novos)53 living in newly-conquered colonies or newlyconquered commercial strongholds54 within the boundaries of the (then vibrant yet now demised) Portuguese Empire. Exerting judicial powers and administrating justice in Portuguese domains, strongholds, and colonies in the Far East fell well within Capitão-Mor de Viagem da China e do Japão’s jurisdiction.55 This distinguished role was embedded in Portuguese Ordinations56 (enacted during the drawn-out Epoch of Ordinances, whose sway set crosswise a long-winded period spanning the sixteenth century to nineteenth century), which would also afford boundless powers to Captains of Cities of Africa (Capitães dos Lugares de África).57 As hinted above, at the two-layered law and social reality level, Ordinations (Ordenações) were fully applicable in Macau from 1557 onwards to either Portuguese citizens or Chinese newly-converted to Christianity58 (cristãos novos).59 Concisely, at the administration of justice level,60 Capitão-Mor de Viagem da China e do Japão’s task61 in Macau62 was not narrowed down to

The far-reaching (here and there boundless) width of Capitão-Mor de Viagem da China e do Japão´s powers (which not only entailed administration of justice, but extended also to law enforcement) can be gauged by this excerpt in Portuguese language: «os capitães das naus ou frotas reais ou de navios privados, enquanto pessoas encarregues da direcção da frota ou do navio, tinham poderes jurisdicionais, sendo-lhes permitido o uso de medidas coercivas. Os capitães de frota detinham ainda poderes conferidos no seu regimento»; António Manuel Hespanha, Panorama Histórico do Direito Chinês. O Pensamento Jurídico, cit.: 71; apud: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 53 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 62–63. 54 Id. 55 Id. 56 Id. 57 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 71 ff. 58 Id. 59 Capitão-Mor de Viagem da China e do Japão´s jurisdiction (which, as mentioned, not only comprised the administration of justice, but extended also to law enforcement) can be also ascertained by this excerpt in Portuguese language: «Portanto, era ao Capitão-Mor que cabia, durante os intervalos das suas viagens (isto é, enquanto esperava pelos ventos de monção para prosseguir viagem até ao Japão) dirigir os assuntos dos portugueses em Macau e administrar a justiça»; see: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 60 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 71 ff. See also: Rosemarie Wank-Nolasco Lamas, History of Macau—A student’s manual, 1st edition, Macau, Institution of Tourism Education, (1998): 8 ff and passim, whose research I will follow closely in this regard. 61 C. A. Montalto de Jesus, Macau Histórico, tradução do inglês por Maria Alice Morais Jorge, 1a edição, Macau, Livros do Oriente, (1990): 58 ff and passim, whose research I will follow closely in this regard. 62 Charles Ralph Boxer, Fidalgos no Extremo Oriente, cit.: 12 ff.

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entertaining small issues related to Portuguese citizens. Rather, comprised also the administration of justice in Macau to either Portuguese citizens or Chinese newly-converted to Christianity (cristãos novos). As highlighted earlier in this section, Capitão-Mor de Viagem da China e do Japão’s wide-scope judicial powers63 in Macau64 covered the administration of justice in Macau65 to either Portuguese citizens or Chinese newly-converted to Christianity (cristãos novos).66 Chinese citizens non-converted to Christianity fell under the jurisdiction of Chinese Officials67 ,68 dubbed as mandarins.69 ,70 As hinted above, the existence of an immaculate Confucianism normative system71 encompassing norms of rites («Li») coupled with customary practices72 ,73 pervaded this territory (China and Macau) for more 2000 years in China’s millenary imperial history.74 ,75 Against this backdrop, the Capitão-Mor de Viagem da China e do Japão wielded a behemoth judicial power in Macau back then.76 The width of his judicial powers goes without saying: Capitão-Mor de Viagem da China e do Japão was allotted the task to trial a bevy of crimes and misdemeanours in last instance.77 Exceptions were made to either crimes to which death penalty could be applied or crimes perpetrated by aristocrats.78 Cases in which regional security was at stake would also fall outside the purview of Capitão-Mor de Viagem da China

C. A. Montalto de Jesus, Macau Histórico, cit.: 58 ff. Charles Ralph Boxer, Fidalgos no Extremo Oriente, cit.: 12 ff. 65 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 66 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 71 ff. 67 C. A. Montalto de Jesus, Macau Histórico, cit.: 58 ff. 68 See Rosemarie Wank-Nolasco Lamas, History of Macau—A student’s manual, cit.: 18 ff. 69 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 70 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 71 ff. 71 Id. 72 Zh. P. Liang, Customary law in Qing Dynasty: Society and State, China, CUPL Press, (1996): 1 ff. 73 Hugh T. Scogin, Jr., “Civil “Law” in Traditional China: History and Theory”, Civil Law in Qing and Republican China, cit.: 28 ff (on the paramount importance of this set of norms of rites and customary practices in China Imperial legal history). 74 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 289. 75 In Portuguese doctrine, António Manuel Hespanha, Panorama Histórico do Direito Chinês. O Pensamento Jurídico, cit.: 8 ff. 76 See Second Book, Title XXVIII, Prologue and First Paragraph, Ordenações Manuelinas, available at: https://www1.ci.uc.pt/ihti/proj/manuelinas/12p138.htm (access: 14.08.2018). 77 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 63. 78 Id. 64

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12.

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e do Japão’s jurisdiction. In such cases, Capitão-Mor de Viagem da China e do Japão lacked jurisdiction.79 In such cases, appeals were to be made to the Court of Second Instance of Goa (India) to which Capitão-Mor de Viagem da China e do Japão was hierarchically subordinated.80 Further to an unbridled social outcry and unfettered dissatisfaction with the administration of justice,81 Capitão-Mor de Viagem da China e do Japão’s role was extinguished in 1623.82 General Chief Captain (Capitão-Geral), a prominent military role with close ties to the Civil Governor (Governador Civil), followed suit.83 In stark contrast with the second layer of law and social reality, at the first layer of law and social reality there was a tailor-made system of administration of justice to Chinese citizens non-converted to Christianity. Such justice would be served to the latter according to a pristine Confucianism normative system comprising norms of rites («Li») coupled with customary practices.84 A (vivid) portray of a (vibrant) millenary culture. A millenary culture that was deeply rooted in Macau’s backbone way before the «arrival of the birds» (the Portuguese) back in 1513. Hence the expression cultural originalism. Whose cultural traits (a Confucian-beliefs-laden one) remained untouched in Macau ever since. With this backdrop in mind, the traits of a two-layered cultural originalism have begun to blossom in Macau as far back as 1557. This phenomenon was enabled by the jurisdiction-bifurcation of Portuguese citizens or Chinese newlyconverted to Christianity (cristãos novos) that were to fall under the jurisdiction of Portuguese Law and Chinese citizens non-converted to Christianity that

António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 68 ff. Id. 81 Portrayed in this excerpt in Portuguese: «Pouco depois da ascensão ao trono de Filipe II (I de Portugal), perante o descontentamento generalizado na administração da justiça, este encarregou uma comissão para averiguar e solucionar os problemas relativos à aplicação da justiça. O resultado dessas averiguações foi a Lei da Reformação da Justiça, em 28 de Julho de 1582, que, nas palavras de Cândido Mendes de Almeida, era “por si só um Código de Processo Civil e Criminal”, onde, basicamente, se tratava do procedimento nos vários tribunais, dos recursos, entre outras matérias processuais. Também durante o reinado de Filipe I procedeu-se à reforma das Ordenações Manuelinas, as quais deram lugar às Ordenações Filipinas. No que toca aos poderes jurisdicionais dos Capitães-Mores, na época das Ordenações Filipinas, pouco ou nada mudou, acrescentando-se, porém, que não caberia recurso dos casos que julgassem a traição, sodomia, roubo e furto em navio (Título XLVIII, Livro 2, número 1), e, desde que não contrariassem as disposições das Ordenações, o Capitão podia aplicar as “Cartas ou Regimentos que lhes fôr outorgado” (número 2) entre outras alterações»: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit., 64. 82 Id. at 63. 83 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit., 64 ff. See: António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: passim. 84 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 289. See also: Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 628 ff. 80

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were to fall under the jurisdiction of Chinese Confucianism normative system. This normative system («Rites») was applied concomitantly (and seamlessly) with millenary customary practices under the superior guidance of the socalled Chinese mandarins.85 Entertaining (and ideally solving) disputes through conciliatory means (including Mediation) was a crucially important part of it. To a certain extent, a two-layered law and social reality and a two-layered cultural originalism were tightly interlocked from its inception. 14. In this vein, it is often said that laws and customs (a batch of cultural-laden norms) were (and still are) inextricably linked in Imperial China and in a small portion of land nowadays known as Macau86 ,87 : «A long time ago, the place known as Macau nowadays was already inhabited by Chinese residents from the nearby regions. In the Ming Dynasty, when the Portuguese were allowed by local officials to settle, it was region governed by XiangShan County, Guangdong Province, where Chinese law applied. At the time, the legal system in force could be represented in two levels; the written law of the Ming Empire, and the regional customs of Guangdong Province and Xiangshan Country. The former mainly included a synthetic code titled “Ming Lü” (Ming Dynasty Code), which structure and content borrowed mainly from the Tang Lü (Tang Dynasty Code)».88 15. Conversely, «In ancient China, just like many other ancient civilization, judicial and administrative functions were not performed separately. Some administrative powers were shared by the officials according to the Emperor’s delegation. However, the Emperor himself also reserved the legislative power. Official law always includes two main components, penal law and administrative law. The “unofficial” law was the customary law of the people, rules that developed in localities or in merchant guilds for handling of matters of common concerns. The magistrate could derive principles of civil law directly from provisions of the penal code or indirectly read into a criminal statute to excavate a basis for a private civil suit».89 16. Unlike Portuguese legality-driven and equality-driven bodies of laws, Chinese Confucian normative system’s backbone (in force in Macau prior the arrival of the Portuguese settlers) was underpinned by morality. Thus being moralitydriven as opposed to legality-driven. Concerns about equality were never an issue to bear in mind in Imperial China: «Finally, in terms of spirit, the Confucian view of law was always centred on morality. Also, where a new piece of legislation was being considered, discretion would be used to assess its relationship to the existing law. Equality before law was never officially accepted as a 85

Id. Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 628 ff. 87 Liu Haiou, Outline of the Macau Legal History, China, Jilin University Press, (2009): 1–18. 88 Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 628 ff (italics added). 89 Id. 86

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legal principle and a practice. Besides, a person could not be convicted without a confession; torture was often used to elicit such a confession. In conclusion, before the Portuguese’ settlement in the middle of the 16th century, Macau was ruled under a centralized monarchical hegemony similar to other parts of China. The traditional Chinese legal culture was composed of a social-legal structure rooted in Confucianism and rulings of a monarchical hegemony».90 Hence the expression (Chinese) cultural originalism at the first layer of law and social reality in Macau. 2.1.1.3

The Creation of the Senate of Macau (Senado da Câmara) (1583–1849): The Inception of an Autonomous Administrative Pathway or the Dawn of the Era of Constant Strife and War Turfs Between Portuguese Judicial Actors?

1. At the purely administrative level, there were vividly clear signs that the Portuguese were seizing the opportunity to establishing their own city government in Macau.91 With this goal in mind, Bishop D. Leandro de Sá (between 1583 to 1585)92 ,93 summoned all and sundry (Portuguese citizens living in Macau) aimed at garnering their attention to the sought-after model of governance.94 From that long-held deliberation emerged the Senate (Senado da Câmara),95 ,96

90

Id. Id. at 630. 92 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 64. 93 There are neither iron-clad (let alone air-tight) certainties regarding the exact dates of Senate’s creation nor regarding its founding fathers. Some glaringly different historical accounts (sometimes from the same author) have surfaced. Some historical reports stated that Senado was created in 1583 under the auspices of Bishop D. Belchior Carneiro (or Melchior Carneiro for some authors). Some historical accounts asserted that were instead the Portuguese traders the founding fathers of the Senate back in 1562. See: Luís Gonzaga Gonçalves, “Leal Senado da Câmara de Macau”, Macau—Um Município com História, António Aresta/Celina Veiga de Oliveira, Macau, Edição do Leal Senado, (1997): 13 ff; Luís Gonzaga Gonçalves, “O Município Macaense”, Macau—Um Município com História, António Aresta/Celina Veiga de Oliveira, Macau, Edição do Leal Senado, (1997): 43–45; Luís Gonzaga Gonçalves, “Os inícios da cidade de Macau”, Macau—Um Município com História, António Aresta/Celina Veiga de Oliveira, Macau, Edição do Leal Senado, (1997): 106 ff; Converging: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 64–65, which I have been following closely. 94 Id. at 64. 95 In the Portuguese doctrine, António Aresta/Celina Veiga de Oliveira, O Senado–Fontes Documentais para a História do Leal Senado, Macau, Edição do Leal Senado, (1998): 18 ff. 96 C. A. Montalto de Jesus, Macau Histórico, cit.: 53 ff and passim (asseverating that Senate’s creation can be traced as far back as 1583 further the initiative of Bishop D. Belchior Carneiro). 91

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which was officially recognized in 1586 by the Vice-King of India (Vice-Rei da Índia).97 ,98 The Senate had unique features (meaning: broad-scope powers) ranging from purely administrative powers to purely judiciary ones.99 At a certain point (depending on the exact date of Senate’s creation in Macau),100 there was a schizophrenic coexistence between Capitão-Mor de Viagem da China e do Japão (and thereafter his functional heir Capitão-Geral) and Senado da Câmara, which led to constant strife and war turfs between both organs. Eventually, such a bitter war turf would prove deleterious to the trust and trustworthiness of both thus hastening their disbandment. The Senate had functional jurisdiction over criminal and civil matters101 regarding Portuguese citizens and Chinese converted to Christianity dwelling in Macau. Two judges were functionally linked to the Senate exerting their powers as for trialling and sentencing both criminal and civil cases.102 Just like CapitãoMor de Viagem da China e do Japão’s (and thereafter his functional heir CapitãoGeral), appeals from Senate’s judges were to be made to either the Chief Justice (Ouvidor) or the Court of Second Instance of Goa103 (India).104 Besides, Senate had a cohort of Peace Judges (Juízes de Paz).105 Unlike judges, their roles were not driven by strict-legality concerns. Yet far from mediation canons though. Pursuant broad-spectrum administrative reforms undertaken by the Portuguese politician Mouzinho da Silveira, Senado da Câmara was partially expunged in the middle of the XIX century.106 Never-ending functional clashes with Capitão-Mor de Viagem da China e do Japão (coupled with whopping reputational damages inflicted upon both their functional integrity) hastened such a formulaic outcome. Thereafter, Senado da Câmara’s jurisdiction107 was severely constrained. As a

João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 64. 98 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 75 ff. 99 Id. 100 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 64. 101 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 55 ff. 102 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 64. 103 Id. 104 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 55 ff. 105 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 65. 106 Id. 107 António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, cit.: 55 ff.

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result, its jurisdiction was circumscribed to entertaining purely administrative108 matters.109 6. Senado da Câmara was later renamed as Loyal Senate (Leal Senado). Somewhere in the first quarter of the XVIII (1720), Leal Senado regained judicial powers. Thus rekindling the bitter strife and acrimonious war turfs amongst Portuguese administration of justice organs.110 More on this at the following sections. 2.1.1.4

The Creation of the Procurate of Macau (Procurador) (1584): The Break of Dawn of an Era of Sino-Portuguese Judicial Network Cooperation: Two Sides of the Same Coin or Two Coins Instead?

1. At the onset of this section, one must assert that the Portuguese never acted as conquerors111 or boorish rulers in Macau.112 Instead, they have carefully customized a «picturesque» image of mere traders or (ephemeral?) visitors.113 This image carefully created by the Portuguese settlers would eventually yield sapid results. It conveyed to the outer world an image of western-peopleamenable-to-live-in-the-Far-East. This bespoke image might have progressively dispelled the resistance of the Chinese (if any) regarding the presence of the Portuguese in Macau. Moreover: not only allayed acrimony (if any) between both communities, but also spurred (to a larger extent) social cooperation between them thereafter. As a result, there was an uptick of Portuguese settlers in Macau.114 This was a conspicuously clear sign that the harmless image of mere traders and visitors relayed by the early Portuguese settlers eventually bore sapid fruits. 2. At the very end of the XVI century, there were clear signs that the initial mistrust between both communities was being increasingly dissipated. As asserted by esteemed doctrine: «gradually, it seems a kind of balance or harmony was

108

Id. See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 65. 110 Id. 111 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 290 ff. 112 Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 630 ff. 113 Id. 114 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit., passim. See also: Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit., passim; Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., passim. 109

2.1 The Rationale Behind the Creation of the First Tier of the Four-Tiered …

3.

4.

5.

6.

115

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established between the Chinese government and the Portuguese community in Macau».115 A good relationship between Chinese authorities and Portuguese rulers ushered in an era of unexampled judicial network cooperation. On the heels of such harmonious relationship, the Procurate (Procurador) was created by the Portuguese community in 1584.116 Procurador was allotted the task to perform the role of liaison official (thus an intermediary)117 between local authorities, Chinese Imperial government, and the Provincial Government of Canton (Governo Provincial de Cantão).118 Procurador was not a creation of the Portuguese community though. Rather, it has received local Chinese endorsement. Conversely, Procurador has been officially endorsed by the Chinese Emperor in 1584 as a second rank Mandarin officer (Mandarim de Segundo Grau). This nomination was aimed at fostering social connections between the Portuguese community and the Chinese community. Procurador thus served as an intermediary between the Portuguese community and the Provincial Government of Canton (Governo Provincial de Cantão).119 This new-fangled position (Procurador) heralded a new era in the institutional relationship between Portuguese local authorities and Chinese Imperial Government. Whilst maintaining glaringly different layers of law and social reality (and keeping unscathed their respective cultural originalism), the Chinese authorities assigned jurisdiction to the Procurador to entertain disputes in which Chinese citizens non-converted to Christianity120 were either the plaintiffs or the defendants. Within these newly-ascribed judicial powers to the Procurador the right to expel Chinese citizens non-converted to Christianity should they posed an eminent threat to public order121 stood out. In addition to that, Procurador was entitled to hold informal hearings and entertaining complaints from the Chinese community against Portuguese citizens and vice-versa.122 Whislt this was not an expression of an administration of justice

Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 630. 116 C. A. Montalto de Jesus, Macau Histórico, cit.: 55 ff. 117 Aureliano Campino da Rosa Barata, “Procuratura do Expediente Sínico”, Ditema—Dicionário Temático de Macau, Vol. IV, Leonor Diaz Seabra/António Rodrigues Baptista (Coordenação), Macau, Faculdade de Ciências Sociais e Humanas, Departamento de Português, Universidade de Macau editora, (2011): 1245 ff. 118 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 65. 119 Id. 120 C. A. Montalto de Jesus, Macau Histórico, cit.: 57 ff. 121 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66. 122 Aureliano Campino da Rosa Barata, “Procuratura do Expediente Sínico”, Ditema—Dicionário Temático de Macau, cit., 1245 ff.

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through conciliatory means (let alone mediation),123 one cannot fail to see a glimpse of it. 7. Besides the foregoing jurisdiction and judicial powers conferred by the Chinese Imperial Government,124 the Procurador was also ascribed the task to trial misdemeanours (occasionally felonies) perpetrated by Chinese citizens non-converted to Christianity.125 Such misdemeanours were immediately trialled by the Procurador.126 Procurador had also jurisdiction127 over felonies (such as battery and robbery) perpetrated by Chinese128 citizens non-converted to Christianity in which Portuguese citizens were the plaintiffs.129 In such cases (felonies),130 Procurador held preliminary hearings under oath.131 8. Subsequently, Chinese citizens non-converted to Christianity who had committed felonies were to be, would be, handed over to a Chinese magistrate in Canton132 to be trialled and sentenced.133 Whenever a murder occurred, Chinese citizens non-converted to Christianity would be immediately arrested by the Procurador.134 Thereafter, Chinese Mandarins (officials that applied Chinese law and customs)135 would come to Macau to process the corpse.136 At the same time, Chinese defendant would be sent over to Canton137 for trial and, should that be the case, execution.138 123

The doctrine attributes some importance to the Juízes de Paz in this regard. See: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66; Aureliano Campino da Rosa Barata, “Procuratura do Expediente Sínico”, Ditema—Dicionário Temático de Macau, cit., 1245 ff. 124 See C. A. Montalto de Jesus, Macau Histórico, cit.: 136 ff. 125 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66. 126 Id. 127 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 128 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66. 129 Id. 130 Aureliano Campino da Rosa Barata, “Procuratura do Expediente Sínico”, Ditema—Dicionário Temático de Macau, cit., 1245 ff. 131 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66. 132 Aureliano Campino da Rosa Barata, “Procuratura do Expediente Sínico”, Ditema—Dicionário Temático de Macau, cit., 1245 ff. 133 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 134 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66. 135 Aureliano Campino da Rosa Barata, “Procuratura do Expediente Sínico”, Ditema—Dicionário Temático de Macau, cit., 1245 ff. 136 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66. 137 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 138 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66.

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9. It would be inaccurate (and ultimately incorrect) to assert that the two-layered law and social reality (which traversed most of Macau’s legal history) was dispelled though. I would call this period as a Sino-Portuguese judicial network cooperation. With trifling nuances, Portuguese law was still applied to both Portuguese and to Chinese converted to Christianity. Chinese law was still applied to Chinese non-converted to Christianity. In this vein, there were two coins instead of two sides of the same coin. This finding will be stiffened throughout the following sections. 2.1.1.5

The Emergence of the Chief Justice of Macau (Ouvidor) in the Arena of Dispute Resolution (1587–1720): One More Judicial Actor to Fuel the Tension Between Capitão-Mor de Viagem da China e do Japão, Leal Senado and the Procurador?

1. Although is not certain the exact date in which the Chief Justice’s (Ouvidor) was created,139 one can set forth the date of 16th of February of 1587.140 As asserted by illustrious Portuguese doctrine, this date marked the enactment of a very important Regiment (Regimento).141 Such Regimento of 16th of February of 1587 symbolically signalled the onset of Ouvidor’s142 tenure in the administration of justice of Macau.143 This Regimento has been enacted further a set of administrative and judicial reforms144 undertaken on Portuguese colonies in East Africa Coast and Far East.145 2. Ouvidor’s main chores boiled down to assisting the Capitão-Mor de Viagem da China e do Japão in administrating justice in Macau at the first layer of law and social reality. Namely, preparing all the cases, trialling (as Capitão-Mor de

139

See in the Portuguese doctrine, Carla Araújo, “Ouvidor”, Ditema—Dicionário Temático de Macau, Leonor Diaz Seabra/António Rodrigues Baptista (Coordenação), Faculdade de Ciências Sociais e Humanas, Departamento de Português, Macau, Edição da Universidade de Macau, Vol. IV, (2011): 1097 ff, which I will follow closely. Converging: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit. 140 See in the Portuguese historical archive, “Regime da Reiação, e Ministros da Justiça da India, Titolo do regimento do Ouvidor de Macáo nas partes da China”, Archivo Portuguez Oriental, fascículo 5.º, 3a parte, Lisboa, Imprensa Nacional Casa da Moeda, (1866): 1143 ff. Converging: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit. 141 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 142 Id. 143 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 144 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 145 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff.

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Viagem da China e do Japão’s assistant)146 criminal and civil suits and signing,147 alongside the former, all the decisions that were made during their tenure.148 3. Ouvidor’s jurisdiction was very broad indeed. He had jurisdiction to trial all criminal and civil cases (pursuant art.º 1 of the Regiment of Macau’s Ouvidor in China).149 In addition to that, Ouvidor had jurisdiction to trial, in last instance, all civil and criminal cases that fell within Capitão-Mor de Viagem da China e do Japão´s jurisdiction150 (according to the jurisdiction outlined on Book 2, Title 47, of Ordenações Filipinas).151 In such cases, their decisions were not appealable to the Second Instance Court of Goa (India).152 4. Pursuant IV Regiment of Macau’s Ouvidor in China, Ouvidor had the incumbency to prepare and trial all the criminal cases.153 As soon as all the preliminary hearings and proceedings were finished, Ouvidor had the duty to inform CapitãoMor de Viagem da China e do Japão accordingly.154 Further this formal notice, the latter would schedule a date for trial.155 Pursuant IV Regiment of Macau’s Ouvidor in China, Ouvidor had the incumbency to write down the decision which would close the case. Such a decision needed to be signed by the Ouvidor and the Capitão-Mor de Viagem da China e do Japão156 though. 5. In case of disagreement between Ouvidor and Capitão-Mor de Viagem da China e do Japão, a consensus could not be reached. As a result, a decision would not be issued.157 In such cases, the oldest council member (alderman) working in Senado da Câmara158 would be summoned. Such council member would be entitled to have a quality vote to untie the standoff. Further a new round, if a majority had been reached, the decision was to be written down mirroring the newly-reached majority.159

146

Carla Araújo, “Ouvidor”, cit.: 1097 ff. João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff and passim, whose research I have been following very closely. 148 Carla Araújo, “Ouvidor”, cit.: 1097 ff. 149 Id. 150 Id. 151 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 152 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 153 Carla Araújo, “Ouvidor”, cit.: 1097 ff. 154 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 155 Id. 156 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 157 Carla Araújo, “Ouvidor”, cit.: 1097 ff. 158 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 159 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 147

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6. Should the Capitão-Mor de Viagem da China e do Japão be unavailable (or travelling across other Portuguese colonies or commercial strongholds),160 the Ouvidor had the duty to trial and sentencing all criminal cases that fell under its jurisdiction as if the Capitão-Mor de Viagem da China e do Japão was present (pursuant VI Regiment of Macau’s Ouvidor in China).161 7. Ouvidor 162 had the duty to trial and sentencing all criminal cases163 that fell within its jurisdiction164 (being that those crimes to which the dead penalty would be applicable provided the defendant was a layperson (peão).165 Should the defendant be a noble or aristocrat,166 prior to reaching a decision or to its enforcement (should that be the case), a binding opinion would be requested to the highest echelon of justice in Macau—Court of Second Instance of Goa (India) (Tribunal da Relação de Goa).167 8. Mirroring a two-layered law and social reality in Macau, Ouvidor was forbidden to exert its jurisdiction over Chinese-non-converted to Christianity.168 However, further an ongoing trend of Sino-Portuguese judicial network cooperation (kicked-off with Procurador’s creation),169 Ouvidor had full jurisdiction over cases of mixed jurisdiction170 (which involved both Chinese non-converted to Christianity and Portuguese or Chinese converted to Christianity).171 Notwithstanding, if a Chinese non-converted to Christianity was murdered, Chinese 160

Carla Araújo, “Ouvidor”, cit.: 1097 ff. See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 162 In the Portuguese doctrine, António Manuel Hespanha, Panorama da História Institucional e Jurídica de Macau, Macau, Fundação Macau, (1995): 29–47 (stating that, in principle, Portuguese law was to be applied to all Christians regardless of their nationality). 163 Carla Araújo, “Ouvidor”, cit.: 1097 ff. 164 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 165 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 166 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 167 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 168 Id. The very same remarks (though in a slightly different direction when it comes to the date of Ouvidor’s creation and the extent and width of its jurisdiction) have been made by esteemed doctrine as follows: «When the number of Portuguese settlers began to grow, they started organizing their own political and municipal unit, the Senado (Senate). This was accompanied by the influence of Portuguese law and legal institutions. For example, the regime of Ouvidor (Chief Justice) was established almost as soon as the Portuguese community was settled in Macau. In 1642, they already had installed their institution of a Notary. It is quite obvious that from the middle of the 16th century to the middle of the 19th century, Portuguese law was applied in Macau, though beliefs differ about the extent of this legal influence»: Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit.: 291. 169 Carla Araújo, “Ouvidor”, cit.: 1097 ff. 170 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 171 Id. 161

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Mandarins would be summoned to join the case172 to co-decide and cosentencing it.173 9. Bearing this backdrop in mind, it is not difficult to clutch the vivid impression that strife, feuds, and acrimonious war turfs were rather recurrent between a vast array of Portuguese judicial actors in Macau174 (concretely: Procurador, Ouvidor, Capitão-Mor de Viagem da China e do Japão and Leal Senado).175 Thus fueling a widespread dissatisfaction with the administration of justice.176 On the heels of such dismay, Ouvidoria de Macau has been disbanded pursuant King´s dispatch (Carta Régia) issued in 1720.177 Leal Senado (previously known as Senado da Câmara) followed suit. Ouvidor´s jurisdiction was transferred to the newly-appointed municipal judges (juízes concelhios) working therein.178 2.1.1.6

A Temporary Suppression of the Two-Layered Law and Social Reality (1743–1804): The Creation of White House Mandarin (Mandarin da Casa Branca) and the Temporary Reinstatement of Chinese Penal Code in Macau

1. At this stage it seems clear that there was a two-layered law and social reality in Macau which spanned roughly three centuries of Macau legal history. Notwithstanding the pinpointed Sino-Portuguese judicial network cooperation, this assertion must not be brushed aside. This two-layered legal reality springs from another assertion: no serious doubts can be cast upon the fullest extent of China’s sovereignty over Macau in that span of time. 2. The very creation (and the proliferation)179 of the Sino-Portuguese judicial network cooperation was a by-product of an ongoing judicial and administrative

172

Carla Araújo, “Ouvidor”, cit.: 1097 ff. See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 174 Carla Araújo, “Ouvidor”, cit.: passim. 175 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 176 See C. A. Montalto de Jesus, Macau Histórico, cit.: 137 ff. 177 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 66 ff. 178 Id. 179 One should bear in mind that the Sino-Portuguese judicial network cooperation started with the judicial cooperation with the Procurador and yet has been extended to the Ouvidor shortly after. 173

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tolerance (again)180 from Chinese authorities towards the Portuguese,181 rather than a full manifestation of sovereignty from Portuguese judicial authorities182 over Chinese-non-converted to Christianity on its own. Which means that the Chinese would resume full judicial sovereignty and jurisdiction183 (as a figure of speech as, in this period, they have never lost track of it)184 whenever they saw socially fit.185 ,186 Overall, this two-layered law and social reality was reasonably functional.187 180

Every now and then this very fact (Chinese judicial and administrative tolerance towards the Portuguese) was reminded to the latter even in official occasions. The clear message was (as stated at the outset of this section) Portuguese should govern themselves and show a lenient and obedient stance towards the Chinese as no sovereignty over Macau had been given to them by the Chinese Emperor: «mal assumiu o cargo de vice-rei de Cantão, em 1582, mandou que se apresentassem as principais autoridades civis, legais e eclesiásticas de Macau para que lhe fosse explicado por que direitos governavam a colónia, porque, alegava ele, o imperador, ao dar-lhes Macau, não lhes outorgava qualquer jurisdição sobre o território (…) Como se esperava, não havia necessidade de mais justificações. Que os portugueses permaneçam em Macau, bons e leais amigos, disse o vicerei, que se governem a si mesmos como até aqui e obedeçam aos mandarins»; (italics added); See C. A. Montalto de Jesus, Macau Histórico, cit.: 52 ff. Apud, João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 70 ff and passim. 181 See João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 70 ff (no direct mention to an ongoing Sino-Portuguese judicial network cooperation has been done though). 182 A full height of administrative and judicial sovereignty which was demographically impossible and utterly unfeasible given the sheer imbalance between Chinese and Portuguese respective population back then: «Os Chinas nesta cidade são perto de 22.000, e todos os cristãos assim velhos como moços e crianças de peito (…) não chegarão a 6.000»; Charles Ralph Boxer, Estudos para a História de Macau—Séculos XVI a XVIII, 1.º Tomo, Macau, Edição Fundação Oriente, (1991): 182 ff. 183 A good example is an historical report portraying that (in 1644, further a social unrest that led to the overthrow of the Ming Dynasty by the Manchu Dynasty) the Emperor issued an Imperial decree stating that the Chinese citizens non-converted to Christianity were forced to move back to the interior Mainland China (towards Canton) to avoid any contacts with aliens or westerns. This measure was mainly aimed at preventing any strike back attempts to restore Ming Dynasty in China. Likewise, this measure clearly shows that until then (1644) Chinese Emperors always considered Macau as a part of China, administered by the Portuguese and within the boundaries drawn by the Chinese; See: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 70 ff; See also: Charles Ralph Boxer, Estudos para a História de Macau—Séculos XVI a XVIII, cit.: 182 ff. 184 Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 630 ff. 185 Despite the seemingly harmonious institutional relationship between Chinese authorities and Portuguese authorities, there are some historical accounts depicting a sort-of episodic disarray between both ends; See C. A. Montalto de Jesus, Macau Histórico, cit.: 57 ff. 186 See also, in the Portuguese doctrine, A. M. Martins do Vale, Os Portugueses em Macau (1750– 1800)—Degredados, ignorantes ou fiéis vassalos d´El-Rei?, 1a edição, Macau/Lisboa, Instituto Português do Oriente, (1997): 68 ff. 187 In Portuguese language, Charles Ralph Boxer, Estudos para a História de Macau—Séculos XVI a XVIII, cit. 181 ff.

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3. However, signs of a temporary suppression of the two-layered law and social reality were lurking ahead and drawing near. At a certain time period (from 1743 until roughly 1803), further the constant strife and war turfs between Portuguese organs of administration of justice,188 Chinese judicial organs were gathering pace when it comes to extending the application of Chinese law to all Macau’s residents (including Portuguese and Chinese converted to Christianity). Bearing this backdrop in mind, the White House Mandarin (Mandarim da Casa Branca)189 or Sub-Branch of White House (Sub-prefeitura da Casa Branca) has been created. Mandarim da Casa Branca was aimed at overseeing all the subjects related to both Chinese and Portuguese (irrespective of their religion) and to prevent bandit-ism within Macau’s limited boundaries.190 4. This situation (which lasted roughly 60 years) reached its zenith in 1774 with the sole (and square) application of the Chinese Penal Code (Código Penal Chinês) to all Macau’s residents191 (regardless of their religion or nationality).192 This temporary suppresion of the Portuguese law (and inherently the suspension of the two-layered law and social reality, which had been in force in Macau since roughly 1557) was allegedly due the assassination of a Chinese non-converted to Christianity perpetrated by a Portuguese citizen.193 5. Additionally, the thrust to display Chinese sovereignty over Macau was mirrored on outdoors (both at Mandarim da Casa Branca and Leal Senado) containing excerpts of a series of Chinese laws.194 The thrust to showcase (and display) the sovereignty over Macau was not only aimed at fortifying Qing’s Dynasty power over Macau, but also to clarifying and harmonizing the interpretation of conflicting bodies of laws (both Chinese and Portuguese)195 —the so-called Twelve Chapters (Doze Capítulos).196

188

A. M. Martins do Vale, Os Portugueses em Macau (1750–1800)—Degredados, ignorantes ou fiéis vassalos d’El-Rei?, cit.: 68 ff. 189 Jin Gouping, “Mandarim da Casa Branca”, Ditema—Dicionário Temático de Macau, Leonor Diaz Seabra/António Rodrigues Baptista (Coordenação), Faculdade de Ciências Sociais e Humanas, Departamento de Português, Macau, Edição da Universidade de Macau, Vol. IV, (2011): 945 ff. 190 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 72 ff, whose research I have been following very closely. 191 See C. A. Montalto de Jesus, Macau Histórico, cit.: 135 ff. 192 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 72 ff. 193 Id. 194 A. M. Martins do Vale, Os Portugueses em Macau (1750–1800)—Degredados, ignorantes ou fiéis vassalos d´El-Rei?, cit.: 71 ff. 195 See Jin Guo Ping/Wu Zhiliang (Coordenação), “Verção de doze Capitolos”, Correspondência Oficial Trocada entre as Autoridades de Cantão e os Procuradores do Senado, 1a edição, Macau, Fundação Macau, (2000): 5 ff. 196 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 72 ff.

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(Bidding) Farewell to the Two-Layered Law and Social Reality (1803–1999) Through the (Unlikely) Influence of French Illuminism? The Outset of Legal Pollination Which Has Prompted Legal Dormants and Cultural Divergence with Law in Macau 1.

2.

3.

197

The equilibrium in which the two-layered law and reality was premised on was eventually reinstated in Macau. But not for long though. This time the imbalance tilted towards the other side of the scale. Further to the decaying of the Qing Dynasty in China, the Portuguese seized the opportunity to «claim» sovereignty over Macau. Like they were never able to do before. «Although Portuguese settlers did not colonize nor conquer Macau by force at the beginning, the harmonious “convívio” among Chinese and Portuguese in this small island gradually lost its foundation as soon as the Qing government started decaying and falling in the late XVIII century».197 The birth of the tagged Portuguese-sovereignty-turn198 over Macau199 can be traced back to the enactment of Royal Provisions (Providências Régias) of D. Maria I of 1783.200 Such Providências Régias resonated with, and were the encapsulation of, an unshakeable intention of claiming sovereignty over Macau. As such: «Since the Providências Régias (Royal Provisions) of D. Maria I of 1783, the intention of Portugal claiming sovereignty over Macau became more and more clear. The Portuguese seizure of control over Macau started in the XIX century with the intervention of their Governor in all issues related to urban and rural administration of this “territory”, and at the same time, claiming jurisdiction over the Chinese in and around Macau. In 1822 the Portuguese Constitution declared Macau an integral part of Portuguese territory (the first time Portugal claimed sovereignty over Macau); and in 1845 Portugal declared Macau a free port, challenging the Chinese right to levy and collect custom duties».201 The sheer bulk the Chinese scholars do not extol such a stance on the dubbed Portuguese-sovereignty-turn over Macau though. Views on the breadth and scope of self-governance ascribed to foreign populations living in a Chinese land

Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit., 293. 198 Sometimes named as Legal and Political Anthropology of Portuguese Overseas Expansion (Antropologia jurídico-política da expansão portuguesa); António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, Macau, Fundação Macau, (1995): 30–31. 199 See in the Portuguese doctrine, Mário Júlio Almeida Costa, História do Direito Português, Coimbra, Almedina, (1996): 157 ff (displaying nuanced historical accounts on this topic). 200 See Jorge Noronha e Silveira, Subsídios para a História do Direito Constitucional de Macau, 1820–1974, tradução por C.Y. Sam e H.F. Vong, Gabinete de Tradução Jurídica/ADAT, (1997): 30 ff (on Portugal´s intention to claim sovereignty over Macau through the creation of Governor (Governador) in the XIX century). 201 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit., 293.

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5.

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premised such a stance.202 But one thing is for sure: «As shown in history, the claim of sovereignty by Portugal in the late nineteenth century was a venture in international politics which turned controversial later. Chinese scholars refused this claim. According to the traditional Chinese political philosophy, it was normal that relevant organs of foreign societies governed the disputes within their own societies. Accordingly, the self-governance of a foreign population in a Chinese land in no way indicates a loss of sovereignty or loss of jurisdiction. It should however be noted that in Macau or even in the whole Chinese Empire of the sixteenth century, law was not consciously identified as a separate element, but instead, an expression of political, economic or military power. Who held sovereignty over Macau after the takeover remained a controversial issue for quite a long time. If not sovereignty, the kind of power held by the Portuguese government over Macau during that period became ambiguous».203 This sweltering topic falls well beyond the remit of this research. Instead of fleshing out the so-called sovereignty-turn over Macau, I will shift my attention to the impact that the dubbed Portuguese-sovereignty-turn had on the design of dispute resolution (and within which core mediation) in Macau. The research question then becomes to gauge whether and to what extent has this labyrinthic period of Macau legal history swayed the equilibrium (or the lack thereof) of the two-layered law and social reality in Macau. If so, the degree to which the so-called Portuguese-sovereignty-turn (mirrored on the enactment of laws, policies, and other manifestation of jurisdiction alike, such as the creation or rebirth of organs of administration of justice) prompted legal dormants and cultural divergence with law in Macau. Surprise should not spring from the fact that the French-charged illuminist conceptions stood at the core of the deemed Portuguese-sovereignty-turn over Macau. A bird’s eye view at it is in order. A law-in-context methodology lies at its heart. From the law-in-context standpoint, back at the very end of the XVIII there was a groundswell of French illuminist-charged conceptions (deeply steeped in State sovereignty-fraught ideas) sweeping across Europe and beyond. French’s illuminism major goal was overhauling men’s state-of-nature to a sought-after civil-State-nature to which the citizens were kindly urged to place their trust

Id. Id.

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6.

7.

8.

204

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upon.204 Creating a Social Pact between civilized citizens and the State would not fall far behind.205 ,206 Bearing this backdrop in mind, laws were a powerful manifestation of State’s longa manus. Laws were a natural manifestation of State’s sovereignty (a vividly clear expression of how things ought to be).207 Jurisdiction (exercised by the judicial power pursuant the emergence of the seminal principle of separation of powers created by the French philosopher Montesquieu,208 a concept however alien to Chinese Confucianism), has not fallen far behind. Portugal embraced such a political-philosophical posture.209 Although such a French-charged political stance has not entailed claiming direct sovereignty over Macau (a question that, again, falls beyond the breadth and scope of this book), it certainly meant that the Portuguese rulers were making whopping efforts to superimpose their side of the two-layered law and social reality. The foregoing political-charged approach prompted the emergence of my newly-crafted concept of legal dormants (a fraction of a cultural background— Confucianism—which has not been illuminated by the light of the law— mirrored on the absence of mediation from Macau’s legal framework to this day—thus being—mediation—a legal sleeping beaty ever since) and cultural divergence with law (a fraction of a cultural background—Confucianism, which mandates that disputes should be primarily solved through mediation to avoid

In French language, «De l’Etat civil. Ce passage de l’état de nature à l’état civil produit dans l’homme un changement trèsremarquable, en substituant dans sa conduite la justice à l’instinct, and donnant à ses actions la moralité qui leur manquoit auparavant». See in French doctrine: Jean Jacques Rousseau, Du Contrat Social, ou Principes du Droit Politique, Bibliothéque publique et universitaire de Geneve (première version); “Le manuscrit contenant la version définitive du Contrat social qui a été imprimée a disparu.” le Pléiade édition t. III, p. 1866. Publication, Amsterdam, février-mars 1762, Marc Michel Rey, etc.; le Pléiade édition t. III, pp. 347–470, 1866–1874. == Du Peyrou/Moultou 1780–1789 quarto édition; t. I, (1782): 187–360 (italics added). 205 See in French doctrine, Jean Jacques Rousseau, Du Contrat Social, ou Principes du Droit Politique, cit.: 347–470. 206 In French doctrine, Émile Durkheim, Montesquieu et Rousseau précurseurs de la sociologie, Paris, Librairie Marcel Rivière, (1953): 18 ff (hailing both Montesquieu and Rousseau as Sociology’s founding fathers). 207 In French language, «Les Lois, dans la signification la plus étendue, sont les rapports nécessaires qui dérivent de la nature des choses» (italics added); see in French doctrine, Montesquieu, L’Espirit des Lois, Une édition électronique réalisée à partir du livre Montesquieu, De l’esprit des lois (1758). (Texte de 1758, dernier état du texte revu par Montesquieu. L’orthographe a été modernisé et la ponctuation légèrement, mais non la graphie. Édition établie par Laurent Versini, professeur à la Sorbonne. Paris: Éditions Gallimard, 1995 (2 volumes: vol I: pp. 1 à 604; vol. II: pp. 605 à 1628.) Collection folio Essais.). 208 Several reviews of Montesquieu’s intellectual and republican legacy have been done throughout the history, see in French doctrine, C. Larrère, Montesquieu républicain? De interpretation universitaire pendant la III république, XVIII siècle 21 (1989): 150–160; C. Nicolet, Histoire, Nation, République, Paris, Odile Jacob, (2000): 47–54. 209 In Portuguese doctrine, António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, cit.: 53 ff.

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social discord—which is wholly divergent with the extant legal framework that excludes mediation from its legal system) in Macau, especially from the middle of the XIX century onwards. 9. At the jurisdiction level, Portugal’s staggering efforts to superimpose their side (layer) of two-layered law and social reality were set in motion through the rebirth and reinstatement of Chief Justice (Ouvidor) (which was reinstated in 1787 and yet it was not until 1803 that its Regiment was issued210 and ratified).211 One of the major novelties of this Regiment (Regimento) was that from 1803 onwards, Ouvidor had jurisdiction to trial criminal cases in which Chinese citizens non-converted to Christianity were murdered without the intervention of Chinese mandarins212 (art.º VI of Alvará de Regimento do Ouvidor de 26 de Março de 1803). 10. Consistent with the foregoing paradigm shift, Ouvidor had also jurisdiction to trial both criminal and civil matters in which Chinese non-converted to Christianity were the plaintiffs and the Portuguese the defendants213 respectively (art.º XVIII of Alvará de Regimento do Ouvidor de 26 de Março de 1803). Ouvidor’s second life did not last long though. Pursuant a Decree of 7th of December of 1836,214 Ouvidor has been (once more) abolished.215 Only this time forever. 11. Another manifestation of the sovereignty-turn was the creation of Committee of Justice (Junta de Justiça)216 in 1803, which had jurisdiction to trial in last instance all criminal cases related with both civilians and military officers.217 If the case involved either the application of the death penalty or the death of Chinese non-converted to Christianity, the defendant was entitled to appeal to the Second Instance Court of Goa218 (India) (Tribunal da Relação de Goa (India). 210

João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 75 ff. 211 See also in Portuguese historical archive, Álvara de Regimento do Ouvidor de 26 de Março de 1803, available at http://legislacao-regia.parlamento.pt/V/1/11/24/ (access: 25.12.2018). 212 Id. 213 Id. 214 See in Portuguese historical archive, Decreto de 7 de Dezembro de 1836, available at http://leg islacao-regia.parlamento.pt/V/1/16/88/ (access: 31.12.2018). 215 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 75 ff. 216 Junta de Justiça has been included in the first major judiciary reform of the overseas provinces situated in the Far-East (Macau) and Indian Sub-Continent (Goa, India) and Oceania (East Timor), which dates as far back as 1th December of 1866, See in Portuguese historical archive, Decreto de 1 de Dezembro de 1866, available at: http://legislacao-regia.parlamento.pt/V/1/41/90/ (access: 1.01.2019). João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, passim. 217 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 75 ff. 218 Id.

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12. Leveraging on the «new illuminist winds», which were sweeping across all Europe and beyond, Portugal inscribed in its Constitution that Macau formed part of the United Kingdom of Portugal, Brazil and the Algarves219 (Reino Unido de Portugal, Brasil e dos Algarves) (pursuant art.º 20/III of Portuguese Constitution of 1822). 13. Such historical event signalled the outset of a movement of legal pollination (as opposed to legal transplants), which would change Macau’s legal landscape forever. As an upshot, the foregoing legal dormants and cultural divergence with law tagged along. 14. A seismic shift followed suit in Macau: (i) ground rent (foro de chão), which was being paid to the Chinese Imperial Government since 1573, was extinguished in 1846220 ,221 ; (ii) Governor Ferreira do Amaral occupied Taipa and Coloane in 1849222 in an earnest attempt to aggrandize the limited-scope boundaries of Macau; (iii) Chinese customs were temporarily abolished (yet they were reinstated in 1862)223 ; (iv) more importantly, Chinese mandarins special jurisdiction224 over Chinese-non-converted to Christianity was officially disbanded in 1849225 ; 15. (v) Consistent with the foregoing sovereignty-turn, the Portuguese Penal Code of 1852, the Civil Code of 1867, the Civil Procedure Code of 1876 and Commercial Code of 1888,226 have been extended to all overseas provinces227 (including Macau)228 ; (vi) in 13th of August of 1862, a paramount Treaty of Friendship and Trade between China and Portugal was signed therefore granting to Macau a position tantamount to other Portuguese´s overseas provinces229 ; (vii) 1th of December of 1887 marked a milestone in the legal history of Macau230 : China 219

Id. João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff. 221 Tong Io Cheng, “Between Harmony and Turbulence: The evolution of Macau and Land Law in the “Colonial” and the “Post Colonial” Context”, cit. 222 «In 1849, Governor Ferreira do Amaral took full control of Taipa and Coloane and jurisdiction of Qing Government over Chinese residents in Macau. Later on, the Treaty of Beijing let to a remarkable integration of Macau into the Portuguese constitutional and administrative system»; Id. at 294. 223 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff. 224 António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, cit.: 55 ff. 225 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff. 226 Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 634 ff. 227 António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, cit.: 55 ff. 228 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff. 229 Id. 230 Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 634 ff. 220

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granted to Portugal a perpetual right to occupy Macau,231 provided Portugal would not transfer the inalienable right to occupy the Peninsula without China´s prior and express consent.232 16. Such a bevy of drastic changes on the legal landscape of Macau sparked the Portuguese «colonial domination» in Macau233 and prompted the emergence of legal dormants (as Chinese laws application were drastically curtailed) and cultural divergence with law (as both the Confucian normative system («Rites») and Chinese customary law system were slowly submerged by the ceaseless stream of Portuguese bodies of laws). To this day, they are both sleeping beauties in Macau´s legal landscape. This explains the reason behind the legal oblivion of mediation in Macau to this day. Such a legal oblivion is in dire need of quashing. To cater to that, some procedural nudges are needed to ensure the rebirth of mediation in Macau. An innovative pre-suit court-connected mandatory mediation legal framework with an easy opt-out stands at the heart of it. 17. Though there was a thrust to centralize the administration of justice in Portuguese organs, that did not mean that Chinese-non-converted to Christianity were deprived from a special jurisdiction. Even though such special jurisdiction was exerted by a Portuguese organ of administration of Justice, there was a reminiscent of a special jurisdiction: the Procuratorate (Procurador),234 who was now hierarchically dependent on the Governor of Macau (concretely: Secretariat of Govern of Macau) and not functionally linked to the Leal Senate (Leal Senado) any further. This special jurisdiction to Chinese-non-converted to Christianity lasted from 1847 to 1877.235 18. Between 1877 and 1894 some changes were made regarding the creation of a special jurisdiction to Chinese-non-converted to Christianity. In 1877, the Procuratorate of Chinese Businesses (Procuratura dos Negócios Sínicos)236 was created. In 1894, pursuant a large-scale legal reform undertaken on the Regiment of Administration of Justice of Ultramarine Provinces (Regime da

231

António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, cit.: 55 ff. João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff. 233 Z. L. Wu, Macau Political System, Macau, Macau Foundation, (1997): 88 ff. See also: Y. T. MI, Macau Legal System and Continental Law Family, Beijing, CUPL Press, (2010): 18 ff. 234 Doubts about whether Procurador applied Chinese law or the Portuguese law persist to this day. The very same set of doubts were raised on whether and to what extent Procurador applied customary Chinese law; See: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff.; Converging: António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, cit.: 55 ff. 235 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 78 ff. 236 See Portugal Historical Archive, Procuratorate’s Regiment of Chinese Businesses (Procuratura dos Negócios Sínicos), available at: http://legislacao-regia.parlamento.pt/V/1/75/124/ (access: 1.02.2019). 232

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Administração da Justiça nas Províncias Ultramarinas),237 Procuratura dos Negócios Sínicos has been effaced from the legal landscape of Macau though.238 Procuratura dos Negócios Sínicos´ judiciary incumbencies were transferred to a local Judge239 accordingly. 19. It was not until 1917 that an especial jurisdiction was re-created to the Chinesenon-converted to Christianity, further the Regiment´s of Special Court for Chinese (Regimento do Tribunal Privativo dos Chinas) and its subsequent promulgation by the Decree n.º 3:637, of 29th of November later published in Macau´s Official Bulletin.240 Like its predecessor, Procuratura dos Negócios Sínicos, Tribunal Privativo dos Chinas did not last long. As a result, and further its disbandment, a Portuguese judge has been appointed to trial criminal and civil matters in which Chinese-non-converted to Christianity were either defendants or aggrieved parties.241 20. Tribunal Privativo dos Chinas ended up sharing the very same fate of its predecessor Procuratura dos Negócios Sínicos as it was extinguished by the Decree n.º 14 553, of 20th of October of 1927.242 Tribunal Privativo dos Chinas´s demise signalled the end of special jurisdictions for Chinese-non-converted to Christianity in Macau.243 After that, all matters related with the Chinese community were entertained in common courts (tribunais comuns), except when family and successions matters were raised. In such cases, the Code of Chinese Uses and Customs in Macau of 1909 (Código dos Usos e Costumes dos Chinas de 237

See Portugal Historical Archive, Regiment of Administration of Justice of Ultramarine Provinces (Regime da Administração da Justiça nas Províncias Ultramarinas) available at http://legislacaoregia.parlamento.pt/V/1/80//117/ (access: 1.01.2019). 238 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 81 ff. 239 Id. 240 Carla Araújo, “Tribunal Privativo dos Chinas de Macau (1917–1927)”, Ditema—Dicionário Temático de Macau, vol. IV, Leonor Diaz Seabra/António Rodrigues Baptista (Coordenação), Faculdade de Ciências Sociais e Humanas, Departamento de Português, Macau, Universidade de Macau Editora. (2011): 1469 ff. João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 81 ff. 241 António Manuel Hespanha, Panorama Institucional e Jurídico de Macau, cit.: 65 ff. See also: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 81 ff. 242 Carla Araújo, “Tribunal Privativo dos Chinas de Macau (1917–1927)”, cit.: 1469 ff. See also: João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 81 ff. 243 This voracious trend towards the erosion of the first layer of law and reality has been pinpointed by renowned doctrine: «as we have shown in previous discussions, it is quite obvious that both the Ming Dynasty and the Qing Dynasty had jurisdiction over Macau for a long time. Chinese residents in the area followed their own customs and were ruled by the Guangdong government under Imperial law. The written laws of the Ming and the Qing dynasties are of course a part of the Macau legal history. Nevertheless, this part of the legal history of Macau has had no basis impact on the current Macau law, like the same set of rules has left no influence on the current legal system in Mainland China» (italics added); See: Tong Io Cheng/Wu Yanni, “Legal Transplants and the on-going formation of Macau legal culture”, cit., 642.

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Macau) was fully (and solely) applicable.244 This situation was maintained until 1948.245 From 1948 to 1999, Chinese with Portuguese nationality were to be submitted to the Portuguese law.246 Chinese who were born in Macau, yet holding a Chinese nationality, were subjected to the Chinese civil law.247 21. Prior the Macau handover to China in 1999, the Portuguese ceasing administration enacted a handful of new codes for Macau (Criminal Code of 1996; Criminal Procedure Code of 1996; Civil Code of 1999, Civil Procedure Code of 1999, Commercial Code of 1999—the tagged 5 Greatest Codes («Cinco Grandes Códigos»)—and two Arbitration laws, which were not revoked until recently by Law n.º 19/2019 («Lei da Arbitragem de Macau»).248 22. Such a batch of laws are applicable to all Macau residents. Mediation was bluntly ignored though. As for mediation, the era of legal dormancy and cultural divergence with law had just begun. But that is hardly the point now. This brief historical account supports my central claim that Luhmann’s social sub-systems (philosophy, culture, political ideology, and law) have intercommunicated with each other for a long-winded span of time. Which means that such social subsystems were both in a permanent interaction with each other and in a permanent state of cross-fertilization throughout most of Macau’s legal history.

2.2 Conclusion §§ 1. Social Dynamics of Mediation amounts to a connecting device that cobbles together the past and the future. This assertion stands at the heart of my newlycrafted concept of looking backwards. §§ 2. By looking backwards, the jurist equips himself to gauge the extent to which Macau accounts for an exquisite example of a two-layered law and social reality and a two-layered cultural originalism. The answer is a resounding «yes». §§ 3. At the first layer of law and social reality, the Chinese non-converted to Christianity upheld Confucianism beliefs. They were subject to Chinese bodies of laws and «Rites». At the second layer of law and social reality, Portuguese and Chinese converted to Christianity were subject to Portuguese bodies of laws. To 244

Carla Araújo, “Tribunal Privativo dos Chinas de Macau (1917–1927)”, cit.: 1469 ff. João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 81 ff. 246 Carla Araújo, “Tribunal Privativo dos Chinas de Macau (1917–1927)”, cit.: 1469 ff. 247 João Vieira Guedes, “Contributo para uma História do Direito Penal e Processual Penal e das Instituições de Administração de Justiça de Macau”, cit.: 81 ff. 248 The Law n. º 19/2019 («Lei da Arbitragem de Macau») kicked-off an era of unity and uniformization in arbitration, which has managed unwind (even: wind off) an era of scattered and botched bifurcation between the Decree Law n. º 29/96/M, of 11th of June (Law of Internal Arbitration) and the Decree Law n. º 55/98/M, of 23rd of November (Law of External Arbitration). See: https://bo. io.gov.mo/bo/i/2019/44/lei19.asp (access: 02.07.2020). 245

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a certain extent, the two-layered law and social reality spawned the two-layered cultural originalism. §§ 4. The harmony-equilibrium in which the two-layered law and social reality sat was sapped by the movement of legal pollination undertaken by the Portuguese rulers at the middle of the nineteenth century onwards. Thus prompting the both legal dormants and cultural divergence with law. §§ 5. Notwithstanding, the erosion of the first layer of law and social reality (mainly its Chinese bodies of laws and «Rites», which have tailed off and petered out from middle of the nineteenth century onwards pursuant the foregoing movement of legal pollination) did not give rise to the erosion of Macau’s unique cultural originalism, which is deeply rooted in, and thus is deeply woven into the fabric of, the Confucian way of thinking. §§ 6. The Confucian way of thinking, which is deeply embedded into the matrix of Chinese way of solving disputes in an amicable manner, must be harnessed with a view to cater to the revamp (and rebirth) of mediation in Macau, which has waned pursuant to the to-be-frowned-upon movement of legal pollination set in motion by the then Portuguese rulers. §§ 7. The brief (thumbnail sketch) historical account undertaken at the first tier of the four-tiered model of mediation (Social Dynamics of Mediation) supports my central contention that Luhmann’s social sub-systems (ranging from religion, philosophy, culture, political ideology, and law) have intercommunicated with each other throughout the vast swathes of Macau’s legal history and long-winded span of time. As an upshot, such social sub-systems were both in a permanent interaction with each other and in a permanent state of cross-fertilization.

Chapter 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 1. Dispute resolution systems do not exist in «in thin air». Nor do dispute resolution mechanisms. Underpinning its emergence is always a set of reasons. Invariably a host of social or religious reasons. Invariably a bevy of legal factors. Invariably a close connection between Luhmann´s social sub-systems (be them law,1 culture, philosophy, religion, economy,2 politics or society), which prompt the choice for a mediation (and every now and then, arbitration). In this vein, there were historical epochs in which some social sub-systems (culture, economy, society, religion, politics) shaped other social sub-systems (such as law). Thus resonating with a permanent interaction (and permanent cross-fertilization) between them.

1

Social sub-systems crisscross each other’s paths all the time. Take the example of Law and Economy. Especially the way they are deeply woven into the fabric of each other: «Law is pivotal to the functioning of markets. Contracts between strangers are possible because rights are fairly allocated within a known legal framework and are enforceable through the courts if they are breached. Thriving economies depend on a strong state that will secure property rights and investments» (italics added). See: Hazell Genn, “What is Civil Justice For? Reform, ADR, and Access to Justice”, Yale Journal of Law and Humanities, 24 (1), (2012): 397. 2 Another major interaction between social sub-systems can be clearly seen through the interplay between economics and politics; See also: Charles Beard, An Economic Interpretation of the Constitution of the United States, 1st edition (1913), Mineola, New York, Dover Publications; Edition Unstated edition (May 20, 2004), (2004) (arguing that economics – chiefly the unbending aim nurtured by a certain political and economic elite of protecting their own economic interests was the driving force behind the political thrust towards the new US Constitution in 1787). © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_3

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2. Unlike stated by the renowned Legal Sociologist Niklas Luhmann, social subsystems do interact externally (and thus cross-fertilize) with each other on a permanent basis. Not only they do interact externally, but they also communicate externally with each other on a constant and ever-lasting basis. This chapter aims at premising my central contention that, unlike stated by Professor Niklas Luhmann, social sub-systems have interacted permanently with each other throughout most of the legal history. Hence the title of this book: a narrative of social sub-systems in constant cross-fertilization, a newly-crafted concept carved out on this book. Such a newly-crafted concept is to be carefully explained at the second tier of the Four-Tiered Model of Mediation, devoted to Cultural Dynamics of Mediation.3 3. In the case of Macau, the previously sketched out legal history portrayed a two-layered law and social reality in which social sub-systems4 have dovetailed seamlessly. The prominence of a given dispute resolution mechanism in Macau (namely mediation within the Chinese-non-converted to Christianity community) was due to the predominance of certain cultural traits (Confucianism) within the Chinese community. On the opposite pole, the thriving of a given dispute resolution mechanism (namely litigation within the Portuguese-converted to Christianity community) was mainly due a western penchant for wrangling and a markedly clear conflict-proneness. 4. My central claim is that Luhmann’s social sub-systems not only interact with each other, but they also prompt the choice for a given dispute resolution mechanism (ranging from mediation to arbitration or hybrid dispute resolution mechanisms such as Arb-Med and Med-Arb) in a given historical epoch. The crossfertilization between religion and law mirrored in Anglo-Saxon England’s legal history is no exception. Let us take a close-range look at it in the following sections. 3

See: Part 3 this book. One of the sweltering questions in the remit of social theoretical description of modern society is tightly interlocked to the interpretation of the relationship between social sub-systems and domains that are duly separated as a social result of the process of social differentiation. Niklas Luhmann (casting on the long shadow of Durkheim, Bourdieu, and Parson) throws light on this phenomenon in his system theory framework. Luhmann’s analysis focuses on the social structure of hodiern societies as comprised of social sub-systems. Yet, as further shown, German Sociologist Niklas Luhmann has failed to confer plasticity and mobility to the social sub-systems (hence the to-be-bemoaned lack of external communicability between the social sub-systems) thus dragging them to the limbic stage of scientific stagnancy. In German doctrine: Niklas Luhmann, Gesellschaftsstruktur modernen Gesellschaft. Band 1, Frankfurt am Main, Suhrkamp, (1980): passim; Niklas Luhmann, “Systemtheorie: Evolutionstheorie und Kommunicationstheorie “, Soziologische Aufklärung 2. Aufsätze zur Theorie der Gesellschaft, Niklas Luhmann (Hrsg.), Opladen, Westdeutscher, (1975): passim; Bulgsu Bognár, “Luhmann’s Functional Subsystems of Modern Society—The Character of Horizontal and Vertical Relationships”, Polish Sociological Review, 182 (2013): 137–152 (whose research I have followed very closely). My central claim in this regard that social sub-systems and dispute resolution (ranging from mediation to court-adjudication) were tightly interlocked all along. To attaining such an overriding goal, a law-in-context methodology is both unmissable and utterly unavoidable. In French doctrine, Pierre Bourdieu, Raisons pratiques. Sur la théorie de l’action. Paris, Seuil, (1994). 4

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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» 1. If one aims to clutch the gist of a given legal framework, a law-in-context methodology is utterly necessary. This entails delving into the origins5 of a given legal framework.6 The uses of history7 is crucially important in this regard. So is Originalism.8 I cannot underline this assertion strongly enough. 2. There is a good academic reason for the use of a law-in-context methodology in this compass: this book is aimed at understanding in retrospect (and foremost understanding in context) how (and why) mediation and arbitration unfolded in Anglo-Saxon England with a view to buttress my central contention that Luhmann’s social sub-systems (in this case, religion and law) interacted (and thus have cross-fertilized) permanently with each other thus prompting the choice for mediation or arbitration for such reasons. Anglo-Saxon England’s disputants had had a markedly different set of reasons (ranging from social, philosophical, economic, religious, cultural to purely legal reasons) to resort to mediation and especially arbitration back then. A law-in-context methodology aims to unlock (and unearth) those original reasons9 and bring them into light.

5

The uses of history are deeply intertwined with the advent of «new originalism». See: Jack M. Balkin, Living Originalism, Cambridge, Belknap Press: An Imprint of Harvard University Press, (2011): passim (bringing forth a new concept of framework originalism in which both constitutional lawyers and laypeople should be truly faithful to the original meaning of the Constitution). 6 Clutching the original meaning of a written text (namely Constitution) is one of the main tasks (perhaps the noblest one) of originalism. See: Randy E. Barnett “The Gravitational Force of Originalism”, Fordham Law Review, 82 (2013): 411–412 (highlighting that «the New Originalism stands for the proposition that the meaning of a written constitution should remain the same until it´s properly changed»). 7 History has been dubbed as a good tool to grasp the original meaning of a given legal regulation. Here is why: «history is a resource, not a command. It is resource in three senses. First, lawyers use of history to support arguments from each and every modality of argument. Rather than a distinct mode of argument, history is a resource for making arguments within each modality. Second, how history is used and how it becomes relevant depends on each modality´s underlying theory of justification. Third, historical arguments within each modality are always defeasible given sufficiently powerful countervailing considerations» (italics added) Jack M. Balkin, “New Originalism and the Uses of History”, Fordham Law Review, 82 (2013): 652. 8 No surprise stems from the fact that United States doctrine holds originalism in such a high esteem. Yet such a praise does not come unwarranted though. Originalism serves (and has served in a notso-distant past) higher purposes: «get a grip» on the national identity is one them; See Richard Primus, “The Functions of Ethical Originalism”, Texas Law Review, 88 (2009): 79–80 (stating that «the deeper power of originalist sounds in the romance of national identity»). 9 The relevance of originalism (suitably tailored to my research purposes) and the uses of history could not be clearer in this regard: «the way people imagine history, look for things in history, deem historical evidence relevant or salient, and weigh competing historical claims will depend on their background modes of justification. For each different theory or style of legal argument, there will be a corresponding way to use history to support that argument. There will be also a corresponding

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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) 3.1.3.1

The Anglo-Saxon period of English Legal History (A.D. 450 to A.D.1066): An Exquisite Tale of Roman Catholic Church’s Clout in Shaping Anglo-Saxon Legal Culture Mirrored on the Ground-Breaking (and Iconic) Anglo-Saxon Charters—Introduction

1. The tagged Anglo-Saxon period10 of English history11 spanned approximately 6 (six) centuries12 - from roughly AD 450, when the very first German tribes13 (Angles, Saxons, Jutes)14 began to disembark on the shores of England,15 and lasted until a group of fearless Normans dislodged local rulers16 to seize power over (and in) England.17 As the Normans found their way in England, the German tribes (amongst whom Angles and foremost Saxons), left for good.18 Or so we thought. «Though many historians characterize the Norman Conquest as the end of the Anglo-Saxon period of English political history, there is much evidence to suggest that A.D. 1066 was not a watershed in English legal history because many legal practices instituted by the Anglo-Saxons survived well beyond the Norman Conquest».19 A unique and dazzling customary law and a (no less mesmerizing)

lens or filter through which people perceive and interpret the significance and relevance of historical events»; (italics added); Jack M. Balkin, “New Originalism and the Uses of History”, cit., 665. 10 David Hill, An Atlas of Anglo-Saxon England, Toronto, University of Toronto Press, Scholarly Publishing Division; (1981): 19 ff (providing a nuanced historical account on Anglo-Saxon´s sway in ancient England). 11 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, The Ohio State Journal on Dispute Resolution, 11 (1), (1996): 1–36 (whose exciting piece of research I will follow closely). 12 Vera I. Evison (ed.), Angles, Saxons, and Jutes: Essays Presented to John N. L. Myres, Oxford, Oxford University Press, (1981): 10 ff (canvassing the set of reasons behind the migration of these Northern European group of people to ancient England). 13 Dorothy Whitelock, The Beginnings of English Society, Westminster, Pelican/Penguin Books, (1952): 133 ff (canvassing in a both engaging and informative way the origins of English society). 14 Vera I. Evison (ed.), Angles, Saxons, and Jutes: Essays Presented to John N. L. Myres, cit., 10 ff. 15 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. 16 Vera I. Evison (ed.), Angles, Saxons, and Jutes: Essays Presented to John N. L. Myres, cit., 10 ff. 17 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. 18 Id. 19 Id.

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system of multi-layered dispute resolution in which negotiation, mediation,20 arbitration and litigation dovetailed nicely stood amongst it. 2. Religion (a Luhmann’s social sub-system)21 was ubiquitous throughout the Anglo-Saxon22 period of English legal23 history.24 The laws of the indelible King Ethelbert,25 and those who have followed him in the long line26 of AngloSaxon succession,27 before and after England became a proper monarchy,28 were enacted leveraging on the clout of Roman Catholic Church.29 3. It is often asserted that the very first religious convoy from Rome to England arrived to England30 in A.D. 597, under the leadership of Saint Augustine.31 20

Patrick Worwald, Legal Culture in the Early Medieval West, London/Rio Grande, Hambledon Press, (1999): 180–198 (on the cardinal role of oral transmission when it comes to the preservation of Anglo-Saxon´s laws and customs). 21 Niklas Luhmann, Funktion der Religion, Frankfurt am Main, Suhrkamp, (1977): passim (on the function of religion, a paramount Luhmann´s social sub-system). 22 Michael Lapidge/John Blair/Simon Keynes/Donald Scragg (ed.), The Wiley Blackwell Encyclopaedia of Anglo-Saxon England, New Jersey, John Wiley and Sons, (2013): 55–578 (narrating a both engaging and astounding historical account comprising history, archaeology, arts, architecture, literatures of England from the Roman withdrawal to the Norman Conquest (c. 450 to 1066 AD). 23 Claire Breay/Joanna Story, Anglo-Saxon Kingdoms: Art, Word, War, London, United Kingdom, Bristish Library Publishing, (2018): 38–378 (stating that during the Anglo-Saxon period the English language was used and written down proficiently for the very first time; pagan populations were converted to Christianity and the foundations of England were laid down therein). 24 Henry Spelman, “Of the Ancient Government of England”, The English Works of Henry Spelman, London, D. Browne, (1723): I. 6 ff and passim (parsing the link between the Anglo-Saxon legal system and the legal texts, both royal and ecclesiastical, alongside oral transmission, which have shaped the Anglo-Saxon legal system from scratch). 25 King Ethelbert, of Kent, became the first Anglo-Saxon King to compile and subsequently promulgate written laws. According to historical accounts, this body of laws comprised Teutonic-inspired customary practices; Eric John/Patrick Worwald, The Anglo-Saxons, cit. King Ethelbert of Kent also promoted a set new rules that gave rise to the high-ranking status of Roman Catholic Church in Anglo-Saxon society; Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36. (6). 26 James Campbell (ed.), The Anglo-Saxons, Westminster, Penguin Books, (1991) (a groundbreaking survey which covers not only Anglo-Saxon´s kings’ long line of succession, but also encompasses a close-range look upon its social sub-sub-systems, such as political history, religion, culture, economics, and other themes that woven in with the former). 27 Patrick Worwald, “The Uses of Literacy in Anglo-Saxon England”, Transactions of the Royal Historical Society, (1977): 18 ff (carving out the Anglo-Saxon´s long line of succession and the pivotal role assumed by the King Ethelbert in recruiting a sheer number of Christian missionaries aimed at writing down their laws). 28 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (6). 29 Id. 30 Frank M. Stenton, Anglo-Saxon England, 3rd edition, Oxford, Oxford University Press; 3 edition (September 20, 2001): passim (describing how important were Anglo-Saxons tribes in England´s history). 31 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (6).

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A ginormous (and thus gargantuan) conversion to Christianity of both AngloSaxon kings and laypeople began at the twilight of the seventh century.32 Seismic shifts followed suit: Roman Catholic Church33 granted itself a political status in Anglo-Saxon society tantamount to that enjoyed by the Kings. More importantly, England’s legal history was about to change forever. Roman Catholic Church (or prosaically the clergy) began a sweeping (and thus a both all-embracing and far-reaching) movement34 aimed at overhauling (and thus morphing) England´s society from an illiterate-based into a literate-based one in which an oral culture was about to become a gloomy glimpse of the distant past.35 4. Clergy’s members were considered educated men and experts in Anglo-Saxon law36 and legal process.37 They have frequently played the pivotal role of dispute resolution doyens themselves.38 Roman’s Catholic Church was instrumental in not only shaping an Anglo-Saxon legal system from scratch, but also in molding an exquisite legal culture in the process. Roman Catholic Church was also instrumental in shaping a functional dispute resolution legal framework in Anglo-Saxon England and creating apposite conditions to enforce its laws.39 5. The Roman’s Catholic Church sway on dispute resolution (foremost: mediation and arbitration) Anglo-Saxon’s England was spottily clear. Roman’s Catholic Church has enthralled laypeople by laying down the foundations upon which a conciliatory-based dispute resolution mechanism stood. Reconciliation (either through negotiation, mediation, arbitration or even litigation) was lodged at the core of an earth-shattering procedural ideology40 : law and neighboring

32

Id. Dorothy Whitelock, The Beginnings of English Society, Westminster, Pelican / Penguin Books, (1956): 18–133 ff. (examining, amongst other topics, the key role that the Roman Catholic Church has played in the Anglo-Saxon England from the fifth century onwards). 34 Barbara Yorke, Kings and Kingdoms of Early Anglo-Saxon England, Abingdon-on-Thames, Routledge; 1 edition (30 Jun. 1990): (stating the importance of Church and foremost giving account of the numerous kingdoms and sub-kingdoms created in England during the fifth century). 35 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (7). 36 Dorothy Whitelock, The Beginnings of English Society, cit.: 29–133 ff (providing nuanced historical accounts which depict how well regarded and esteemed were priests that were versed and educated in law). 37 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (7). 38 Id. 39 Id. 40 Id. 33

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love.41 A ground-breaking creation of Roman’s Catholic Church, which was instrumental42 ,43 in shaping a riveting Anglo-Saxon legal system44 from scratch. 6. There is a vast array of historical documents portraying the uniqueness of the Anglo-Saxon dispute resolution system. Amongst which stands historical documents ranging from royal and non-royal charters45 ; royal46 writs; non-royal writs; a miscellany of Catholic Church documents47 ; documents enshrining private memoranda (like wills and writs), which have recorded details of lawsuits.48 Taken together, such historical documents amount to a living testament of the supreme importance of Roman Catholic Church in shaping Anglo-Saxon England’s dispute resolution system from scratch. 7. There was an overriding objective undergirding such historical records: «they record the Church’s acquisition of vast amounts of land during the Anglo-Saxon period as well as other details of its growth into highly statused and powerful institution that it became in English medieval life».49 However, the importance of those historical records stretches far beyond the mere status of a pile of documents

41

Michael Clanchy, “Law and Love in the Middle Ages”, Disputes and Settlements: Law and Human Relations in the West, John Bossey (ed.) Cambridge [Cambridgeshire]; New York: Cambridge University Press, (1983): 45 ff (carving out utile ideas about the importance of Church teachings and also the interplay between law and love). 42 Dorothy Whitelock, The Beginnings of English Society, cit.: 29–133 ff. 43 Eric John/Patrick Worwald, The Anglo-Saxons, cit. 44 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (7 footnote ) («Even after the Norman Conquest, members of the Anglo-Saxon clergy were considered experts in Anglo-Saxon secular law. In A.D. 1075–1076, for example, the former Anglo-Saxon Bishop of Selsey was brought to an Anglo-Norman judicial enquiry to answer questions on the nature of Anglo-Saxon law. And, as late as the reign of William II, there is evidence that the king granted a certain priest a living place because he was learned in the law»). Which I have followed very closely in this regard. 45 Anges J. Robertson (ed.), Anglo-Saxon Charters, Cambridge, Cambridge University Press, (1939) («Robertson’s Anglo-Saxon Charters contains a variety of texts ranging in (apparent) date from the mid-eighth to the end of the eleventh century. It contains examples of all of the recognizable types of document for which the vernacular is known to have been employed in Anglo-Saxon England (apart from the written instructions or notifications known as writs, all of which may be found in Harmer’s Anglo-Saxon Writs), including royal diplomas, ‘private’ charters, leases, wills, and records generated by the processes of litigation»). 46 Anges J. Robertson (ed.), Anglo-Saxon Charters, cit. («The instruments of government known as royal diplomas, issued in the names of kings (generally at royal assemblies) from the seventh century to the end of the Anglo-Saxon period, granting land and privileges to religious houses or to individuals (ecclesiastical and lay), were composed all but invariably in Latin»). 47 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. 48 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. Anges J. Robertson (ed.), Anglo-Saxon Charters, cit. (records of lawsuits and litigation can also be found in this breath-taking compilation). 49 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36.

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which mirrors Roman’s Catholic Church acquisition of land during the AngloSaxon period: «Though the royal and non-royal charters were used by the AngloSaxons to convey land, many contain details about disputes relating land grants. Similarly, numerous private memoranda (as well as some writs and wills) contain details about Anglo-Saxon lawsuits, legal rules, or legal practices».50 These are called the Anglo-Saxon Charters. 8. The Anglo-Saxon Charters will prove important as to shine a fresh light on a multilayered dispute resolution customized by Roman’s Catholic Church, which would send ripples across legal history. Upon close examination, Anglo-Saxon England’s dispute resolution system has deeply influenced ground-breaking legal reforms in centuries to come. The UK Woolf reforms of 1999 and the seminal multidoor courthouse idea carved out by Professor Frank Sander at Pound Conference of 1976 stand as archetypical examples. 3.1.3.2

Mediation and Arbitration in Anglo-Saxon England as Comprised in the Anglo-Saxon Charters: A Precursor of Sander’s Multi-door Courthouse Idea of 1976?

1. Frank Sander’s multi-door courthouse idea has been touted as a watershed in the realm of mediation and arbitration. For what is worth, it has been said that courtconnected dispute resolution51 programs have clearly fallen short of matching Professor Frank Sander’s full-blown concept52 of a court with manifold doors to choose from. A universe of reasons is behind this. But that is hardly the point right now.53 It is my firm conviction that the multi-door courthouse idea54 is undergirded by a warped truism in view of which ill-informed disputants are actively encouraged to knock on whichever door they see fit to their procedural needs. 50

Id. Thomas J. Stipanowich, “Living the Dream of ADR: Reflection on Four Decades of the Quiet Revolution in Dispute Resolution”, Cardozo Journal of Conflict Resolution, 18 (3) (2017): 515 («similar themes were sounded more expansively by Professor Frank Sander in his seminal concept paper Varieties of Dispute Processing, which outlined a proposal for making the public justice system more responsive to the different kinds of conflict which make their way to the courthouse»). 52 Frank E.A. Sander, “Varieties of Dispute Processing”, Pound Conference: Perspectives on Justice in the Future, A. Leo Levin/Russell R. Wheeler (Editors), Eagan, Minnesota, West Publishing Company, Thomson Reuters, (1979): 1–8 (putting forth an influential vision—though not an original one as one would assume at first glance—which would send ripples across mediation´s stagnant waters). 53 For further developments: Hugo Luz dos Santos, “Mediation Needs to be Mediation: How Should a Prospective Mandatory Mediation Legal Framework in Macau Look Like”, Wonkwang Law Review, KCI Indexed (Web of Science/Clarivate Analytics), Wonkwang Legal Research Institute, 36 (2), June 2020, (2020): 163–211 (decrying Professor Frank Sander´s multidoor courthouse idea). 54 Carrie Menkel-Meadow, “Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal,” Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads (2013): 418–428 (outlining a brief history of dispute resolution in the United States of America). 51

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2. Whilst I recognize multitudinous procedural advantages to this multi-door courthouse idea, Professor Sander’s hackneyed vision has been put in practice by the New Jersey’s Quaker community55 (which has laid down a functional multilayered dispute resolution mechanism far more advanced than the multi-door courthouse idea) as far back as the seventeenth century. By the same token, Anglo-Saxons (somewhere in the seventh century) outlined a top-notch (and state-of-the-art) dispute resolution system tantamount to the threadbare multidoor courthouse idea way before the last quarter of the twentieth century. This is an assertion often overlooked (if not outright forsaken) by the legal community in an overarching sense. 3. With regard to the Anglo-Saxon’s England legal framework, there was a methodological bias which has sullied (chiefly tarnished) the integrity of subsequent research results. Eventually leading to skewed and bigoted conclusions.56 I refer to the fact some legal historians have conveyed the both botched and shoddy idea that Anglo-Saxon legal procedure was slow57 and archaic.58 «As a consequence, historians have not envisioned the existence of a sophisticated dispute processing continuum that provided for rule-based resolution of lawsuits59 in

55

Pink Dandelion, An Introduction to Quakerism, Cambridge, Cambridge University Press, (2007): passim. 56 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (11). 57 Frederick Pollock/Frederick Maitland, History of English Law before the time of Edward, Indiana, Indianapolis, Liberty Fund Inc; (1895) reprinted in 2010, (2010): 676 ff (conveying the erroneous and tampered with idea that the Anglo-Saxon legal procedure was formal, unbending, inelastic, somewhat morose, and slow). 58 J. Laurence Laughlin, “The Anglo-Saxon Legal Procedure”, Essays in Anglo-Law, Henry Adams/Henry Cabot Lodge/Ernest Young/ J. Laurence Laughlin (ed.), Boston, Boston Little, Brown, and Co., (1905) Reprint edition (30 April 2009): 38 ff (adducing that the Anglo-Saxon legal procedure was inflexible, rigid, with no streamlined ways to achieve a brisk, functional and merits-geared justice). 59 J. Earle (ed.), Handbook to the Land-Charters and other Saxonic Documents, Oxford, Oxford University Press (1968): («Edition of the Old English Record of the purchase by John (bishop of Wells?) of Gunnhildr, Thorketill’s daughter, from Gode, Leofnoth’s widow, in the presence of the monastic community at Bath; he has entrusted her to Christ and St Peter (the monastery at Bath?), as found in CCCC MS 140, p. 270 No. 14»).

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Anglo-Saxon England».60 Anglo-Saxon Charters61 ,62 ,63 paint the Anglo-Saxon England´s legal framework in a glaringly different light though.64 ,65 4. There is a starting point that is not to be forsaken in this regard: customary (paganbased) practices were deeply woven into the fabric of Anglo-Saxon England´s society.66 Anglo-Saxon Charters67 portrayed a social reality in which disputes arising out closely-knit family circles of which Anglo-Saxon social communities were made of68 were rife. 5. With regard to dispute resolution (mostly mediation and arbitration) in AngloSaxon England, there is a pre and post Roman Catholic Church period that deserves to be remarked upon. Before the arrival of the early Christian missionaries to the English territory (circa A.D. 450–600), dispute resolution (thus outside the purview of both mediation and arbitration) was handled in an allor-nothing fashion in, and within, close-knit families.69 Ranging from the best

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Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (11). 61 A.S. Napier/W. H. Stevenson, Crawford Collection of Early Charters and Documents Now in the Bodleian Library, Victoria, Australia, Leopold Classic Library (August 2, 2017): 18–178 (collating a vast array of Anglo-Saxon charters, which vividly portray a host of sales and purchases of land and inherent legal procedures). 62 Florence E. Harmer (ed.), Select Historical Documents of the Ninth and Tenth Centuries, Charleston, South Carolina, BiblioBazaar (May 20, 2009): 28–148 (amassing an impressive number of historical documents spanning the period of Ninth and Tenth centuries). 63 A.E. Bond (ed.), Facsimiles of Ancient Charters in the British Museum, London, By the Order of Trustees, Contributor: Columbia University Libraries (1873): available at: https://openlibrary.org/books/OL14789567M/Facsimiles_of_ancient_charters_in_the_Bri tish_museum. (access: 31.03.2019) (facsimiles of 140 English documents dating from A.D. 624 < 674? > to the eleventh century. Later documents are reproduced in the new series: Facsimiles of royal and other charters in the British museum). 64 P. H. Sawyer, Anglo-Saxon Charters, An Annotated List and Bibliography, New York, Beekman Books Inc; 1st Edition edition (1 Jun. 1968) (1968): passim; (compiling and numbering a wide range of the surviving charters). Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36. 65 Florence E. Harme, “Select Cases in Anglo-Saxon Law”, Essays in Anglo-Law, Henry Adams/Henry Cabot Lodge/Ernest Young/ J. Laurence Laughlin (ed.), Boston, Boston Little, Brown, and Co., (1905) Reprint edition (30 April 2009): 310–380 (providing an overview about the Anglo-Saxon Law in a both engaging and informative manner). 66 Catherine Hillis, “The Archaelogy of England in the Pagan Period”, Anglo-Saxon England 8 (1979): 298–299 (canvassing the origins of England in the Pagan period and providing a glimpse of its tight community back then). 67 Nicholas Brooks, “Anglo-Saxon Charters: The Work of the Last Twenty Years”, Anglo-Saxon England, 3 (1974): 215–229 (on the utmost importance of Anglo-Saxon Charters as for shedding light on dispute resolution procedures that were used in the Anglo-Saxon England). 68 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36, whose stellar research I have been following closely. 69 Id., whose stellar research I have been following closely.

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peer-to-peer way of solving dispute resolution (negotiation) to the barbarian peerto-peer way of solving a dispute (pugilism),70 Anglo-Saxon England lacked a functional dispute resolution legal framework to entertain quarrels. Much to Church’s keen dismay and utter disenchantment. 6. After the arrival of the birds (Roman Catholic Church) to England, mediation and arbitration were to be leveled up. From that moment onwards, Roman Catholic Church began to exert its clout71 in England.72 Conflict resolution was «leveraged up» by a sudden surge of civilized-laden forms of conflict-handling within and between closely-knit families. Circumstances were to alter though. They always do. We know that much by now. Luhmann’s social sub-systems (law and dispute resolution alongside religion) lied at the core of it. 7. As local communities and populations were massively converted to Christianity, there was a seismic shift in the field of dispute resolution in Anglo-Saxon England.73 Slowly (yet steadily) barbarian-pagan-charged practices were a shady glimpse of the past. There was a top-down dispute resolution movement carved out by the Roman Catholic Church74 in Anglo-Saxon England which must not be relinquished, much less downplayed. The ancient (and violent) practices were overtly lambasted by both the Anglo-Saxon king and the Roman Catholic Church in Anglo-Saxon England.75 8. From a certain moment onwards, not only violent conflict resolution practices did not abound but were on the verge of being completely extinguished and scrubbed out: «The nascent Anglo-Saxon legal system, however, evolved as a synthesis of the new and the old, of rule-based and non-ruled-based methods for resolving disputes peacefully».76 Let us have a close-range look at it at the following section. 70

Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. See also: Tacitus, The Agricola and the Germania, James Rives (Editor, Introduction), Harold Mattingly (Translator), Westminster, Penguin Classics; 1 edition (March 30, 2010), (2010): 29–220 («The Agricola is both a portrait of Julius Agricola—the most famous governor of Roman Britain and Tacitus’ well-loved and respected father-in-law—and the first detailed account of Britain that has come down to us. It offers fascinating descriptions of the geography, climate and peoples of the country, and a succinct account of the early stages of the Roman occupation, nearly fatally undermined by Boudicca’s revolt in AD 61 but consolidated by campaigns that took Agricola as far as Anglesey and northern Scotland. The warlike German tribes are the focus of Tacitus’ attention in the Germania, which, like the Agricola, often compares the behaviour of “barbarian” peoples favourably with the decadence and corruption of Imperial Rome»). 71 Margaret Deanesly, The Pre-Conquest Church in England, Margaret Deanesly (1963): 10 ff (stating the Roman Catholic Church was blooming in Anglo-Saxon England by the eight century; ranging from small dioceses to monasteries, Christian faith proliferated). 72 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (11). 73 Id. at 12. 74 Id. 75 Id. 76 Id.

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How Has Roman Catholic Church Penitential Justice Shaped Anglo-Saxon England’s Mediation and Arbitration: The Forebear of United Kingdom’s Woolf Reforms of 1999?

1. By the early seventh century, Roman’s Catholic Church and Anglo-Saxon’s kings England have reached a gentlemen’s agreement in view of which writing down laws would the best course of action to be taken. The sweeping goal was to lay down the foundations upon which a revamped legal system would stand. With one overriding goal in mind: handling disputes in a cordial, peaceful,77 seamless, trim, brisk, fuss-free, streamlined, and swift manner. Just like the New Jersey´s Quaker community (whose baseline ideology was deeply soaked in, and by, both Christian teachings and gospel orders),78 early Anglo Saxon England´s legal framework had a mixed or hybrid nature. 2. On one hand, there was a Roman’s Catholic Church-inspired draconian system of penitential discipline79 whose disciplinary measures—ranging from deprivation of all Church rites, right of a consecrated burial, to the extreme sanction of excommunication80 —sought both to admonish and sanction recidivism. The harshest disciplinary punishment (excommunication) bears striking similarity with the one professed by the New Jersey´s Quaker community.81 People were to be excommunicated whenever they perpetrate (d) a both egregious and unlawful action: refusing to82 «to make peace and accept justice from those who had wronged them».83 3. On the other hand, penitential discipline was a tool whose overriding goal was not only nudge people towards solving their disputes through amicable means, but also to severely punish them whenever that failed to happen. Roman’s Catholic Church «required individuals to pay the Church monetary sums as compensation

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Id. at 13. Pink Dandelion, An Introduction to Quakerism, Cambridge, Cambridge University Press, (2007): passim. 79 Thomas Pollack Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence, Volume CVII, Number 2 in Columbia’s series, Studies in History, Economics and Public Law, New York, Columbia University, (1923): 145 ff («Penitential are manuals for confessors that outline penances and their fines. They originated in the Celtic church and their use spread throughout the British Isles during the early middle ages. Though restricted to church discipline, they often influenced secular law»). 80 Thomas Pollack Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence, cit.: 167–169. 81 Pink Dandelion, An Introduction to Quakerism, Cambridge, Cambridge University Press, (2007): passim. 82 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (13). 83 Thomas Pollack Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence, cit.: 167–169. See: Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36. (13 ff). 78

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for failing to fulfill secular laws and forced litigants to stiff penance for committing perjury in court and for failing to resolve disputes peacefully in accordance with the king’s laws».84 4. Against this background, penitential justice was a tool whose sweeping goal was to weed out, mostly filter out, court adjudication at any cost. By exerting85 «a powerful influence towards stiffening the penalties for (secular) crimes as well as in temporarily filling important gaps (in the substantive law)»,86 Roman Catholic Church was instrumental in shaping not only a brand-new legal culture from scratch, but also in overhauling laypeople’s mind-sets in the process. 5. But there is more to it. Roman’s Catholic Church played a key role in catering to the stiffening of the secular law’s kernel. Roman’s Christian Church jarring system of penitential justice not only ushered in a new dispute resolution era in Anglo-Saxon England, but, and foremost, has also thickened the system of enforcing judicial decisions by direct and official coercion.87 Severely punishing those who both spurned to abide by secular laws and to show keen respect for secular courts decisions88 (which would pave the way to a detestation crime) were Roman Catholic Church’s prototypical forms of swaying the manner through which mediation and arbitration89 unfolded in Anglo-Saxon England.90 6. This mechanism of nudging disputants91 through more rational avenues (for instance, mediation) seems to have somewhat influenced the English Woolf reforms of 1999.92 In this vein, English higher courts93 seems to have been swayed 84

Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (13). 85 Id. 86 Thomas Pollack Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence, cit.: 195. 87 Id. at 161–199. 88 Id. 89 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (13). 90 Thomas Pollack Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence, cit.: 161–199. 91 Cass R. Sunstein, “The Ethics of Nudging”, Yale Journal on Regulation, 32 (2/6), (2015): (emphasizing that «all over the world, governments are using nudges as regulatory tools. If welfare is our guide, much nudging is actually required on ethical grounds, even if it comes from government») (italics added). 92 Lord Woolf, Her Majesty´s Stationary Office, Access to Justice: Interim Report to the Lord Chancellor on The Civil Justice in England and Wales, June 1995, partially available at: http://www1.worldbank.org/publicsector/LearningProgram/anticorrupt/premnote40. pdf (access: 27.08.2020) (which stated in a directive tone that «The court will encourage the use of ADR at case management conferences and pre-trial reviews, and will take into account whether the parties have unreasonably refused to try ADR or behaved unreasonably in the course of ADR») (italics added). Converging: Access to Justice Final Report, The Right Honourable the Lord Woolf, available at: https://webarchive.nationalarchives.gov.uk/20060213223540/http://www.dca.gov.uk/ civil/final/contents.htm (access: 27.08.2020). 93 Hurst v Leeming (2001), England and Wales High Court (EWHC) (Ch) 1051 (Eng.) (the court held that lower and higher courts should ascertain in case-by-case basis whether the refusal to

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(in all likelihood unbeknownst to them) by Anglo-Saxon England’s penitential justice. Consistent with the fundamental tenets of Anglo-Saxon England’s penitential justice, English higher courts have not been sluggish to impose costs and other sanctions to disputants unwilling to contemplate mediation94 in good faith prior to enter judicial proceedings (lawsuit, appeal, after they had been expressly urged by the Court of law to navigate through such avenue).95 7. Drawing upon my newly-created concept of social sub-systems in permanent state of cross-fertilization, and its momentous impact on the unfolding of dispute resolution throughout most of the legal history of Macau96 and Anglo-Saxon England, I cannot help but to stress vigorously the importance of a law-incontext97 methodological approach aimed at unveiling, and throw a fresh light on, the silent forces of law traversing a given span of time and given territory. 8. In this vein, Roman’s Catholic Church draconian system of penitential justice (mainly its underlying philosophy of urging disputants to stay out of courts of law with a view to settling their quarrels through amicable means) might have (to a certain extent) traversed the long-winded road of England’s legal history reaching the twenty-first century. The UK Woolf reforms of 1999 stands as a paradigmatic example. Roman’s Catholic Church-Charged Anglo-Saxon Legal Procedure: Does the Lingering Myth of «ADR» Stands to a Fine-Grained Historical Account? 1.

Roman’s Catholic Church-inspired Anglo-Saxon98 legal process was not difficult to latch on. It was undergirded by a straightforward (and to a certain extent), seamless, fuss-free, trim, swift and streamlined legal procedure. The availability

mediate was objectively justified), available at: https://www.judiciary.uk/court/high-court/ (access: 27.08.2020). 94 Judith Resnik/Dennis E. Curtis, “Representing Justice: From Renaissance Iconography to Twenty-First-Century Courthouses”, Proceedings of the American Philosophy and Society, 151 (2) (2007): 139 ff (noting that courts often exert coercive power aimed at bringing disputants to the negotiation table). 95 Dunnet v. Railtrack (2002), England and Wales Court of Appeals (EWCA) (Civ) 2003 (Eng.), available at: https://www.judiciary.uk/court/court-of-appeal/ (access: 27.08.2020) (in which the Court applied Part 44 of Civil Procedure Rules and spurned to give back disputant´s legal costs for he has refused to contemplate mediation in good faith prior to the appeal). 96 See Part 2, Chap. 2, point 2 to point 2.2. of this book. 97 Hazel Genn, “What is Civil Justice For? Reform, ADR, and Access to Justice”, Yale Journal of Law and the Humanities, 24 (1/18), (2012): 398 (asserting that context plays a key role in unlocking government´s underlying motivations prior to embarking in-depth legal reforms, such as the one embodied by UK Woolf reforms of 1999). 98 Catherine Hillis, “The Archaelogy of England in the Pagan Period”, cit.

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of public dispute resolution hearings99 forums for commencing lawsuits100 deserves to be briefly remarked upon. Historical accounts relay the idea that there was a folk assembly101 (akin to a public community gathering),102 whose overriding goal was to entertain disputes arising out close-knit families. Given the fact that at this stage (early Anglo-Saxon period) England was a wholly oral103 culture,104 scant information or public records have been kept and made available to the general public. Polymath doctrine asserted that its origins can be traced back to the Germanic folk (public)105 assemblies though.106 The higher echelons of AngloSaxon England´s society (the great bulk of whom were wholly acquainted with customary law) would be summoned to join the public dispute resolution hearings107 forums. The foregoing public hearings were presided by royal representatives (deemed as reeves).108 Such local and public community hearings were deemed as dispute resolution forums.109 They (royal representatives) were expressly required to attend them.110 Should they failed to do so, fines111 and

Frank M. Stenton, Anglo-Saxon England, 3rd edition, Oxford, Oxford University Press; 3 edition (September 20, 2001), cit., 297–298 (referring to an eight-century memorandum that brings into light a widespread practice of holding public hearings in England’s Anglo-Saxon period). 100 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (16). 101 Nicholas Brooks, “Anglo-Saxon Charters: The Work of the Last Twenty Years”, cit. 102 Frank M. Stenton, Anglo-Saxon England, cit.: 297–298. 103 Patrick Worwald, “The Uses of Literacy in Anglo-Saxon England and its Neighbours”, Transactions of the Royal Historical Society, 5th series 27 (1977), 95–114 (portraying a wholly oral culture prior to the Anglo-Saxon period and the social influence of Roman Catholic Law). 104 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (16). 105 Tacitus, The Agricola and the Germania, James Rives (Editor, Introduction), Harold Mattingly (Translator), cit.: 29–220. 106 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (16). 107 Frank M. Stenton, Anglo-Saxon England, cit. 108 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (16). 109 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. 110 Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, Originally published: Cambridge: University Press, 1922. xii, 256 pp, later reprinted and republished, Clark, The Lawbook Exchange, Ltd. (March 13, 2006) (2006): 268 («The most impressive contribution to the bibliography of Anglo-Saxon legal sources since Thorpe and Liebermann, this edition contains the texts of the Kentish laws, the laws of Ine and Alfred the Great, treaties with the Danes, and the laws of Edward the Elder and Aethelstan. The texts are in Anglo-Saxon with English translations»). 111 Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 137 ff.

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costs would be imposed upon them112 on the grounds of disowning113 their original jurisdiction.114 I am pretty sure that the dear reader can see the close resemblance between the penitential justice set forth by the Roman Catholic Church (religion, a paramount Luhmann´s social sub-system) and the imposition of costs to disputants unwilling to abide by, and comply with, the baseline requirements of contemplating mediation (law, another paramount Luhmann´s social sub-system) in good faith laid down by the much-acclaimed UK Woolf reforms of 1999. As far as dispute resolution process is concerned, historical accounts buttress the claim in view of which both male and female were entitled to bring a lawsuit before an Anglo-Saxon England’s court.115 Both men and women could sue and be sued.116 With regard as to how dispute resolution unfolded,117 the pleadings were mainly based on oral arguments.118 Most (if not the whopping/staggering majority) of the lawsuits (as both documented and as comprised in the AngloSaxon Charters) were based on land119 -and-property120 quarrels.121 Although a kingship-based justice (and likewise a Roman Catholic Church-inspired justice, a central claim of social sub-systems in a constant state of cross-fertilization), the ruler (the king) did not play a pivotal role as far as entertaining the lawsuits brought before the secular courts was concerned nor had he any jurisdiction over the enforcement of procedural outcomes.122 During this span of time,

Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (17). 113 Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 137 ff. 114 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (17). 115 P. H. Sawyer, Anglo-Saxon Charters, An Annotated List and Bibliography, cit. 116 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18). 117 P. H. Sawyer, Anglo-Saxon Charters, An Annotated List and Bibliography, cit. 118 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18). 119 Laws of Alfred; Laws of II Canute; Laws of III Edgar, & 8; Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 4, 16, 25, 77, 183. 120 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18). 121 Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 137 ff. 122 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18).

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5.

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royal rulers (kings)123 did not play an important role in both serving justice124 and enforcing it.125 As far as the choice of dispute resolution mechanism is concerned, one cannot fail to see some similarities with Independent Arbitrator (which would be later used in Middle Age England and the New Jersey’s Quaker community in early America in the antebellum period126 and so forth). Regarding the initiation of court proceedings, disputants would be urged to take their cases (or lawsuits) to a sort-of of assembly meeting.127 This assembly meeting would decide if those lawsuits were to be docketed and referred to a judge128 or to a private arbitrator (a glimpse of binding arbitration) to decide the lawsuit129 instead. Either way, disputants’ procedural choices were to be respected. Even if disputants decided to choose Independent Arbitrator prior to submitting the lawsuit to the assembly meeting.130 A cautionary note is in order as far as quashing the lingering ADR myth is concerned: from the hermeneutics of the Anglo-Saxon Charter evidence, court adjudication, mediation and arbitration were not independent (let alone extrajudicial alternative)131 dispute resolution mechanisms. Court adjudication, mediation and arbitration were always under the all-embracing and far-reaching umbrella of the Anglo-Saxon’s England system of administration of justice (hence: within the judicial system).132

P. H. Sawyer, Anglo-Saxon Charters, An Annotated List and Bibliography, cit. Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 137 ff. 125 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18). 126 Conklin, N. Carli, “A Variety of State-Level Procedures, Practices, and Policies: Arbitration in Early America”, Journal of Dispute Resolution, 1 (7), (2016): 55 ff and passim. 127 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18). 128 Laws of Hlothhere and Eadric, & 8 («If one man brings a charge against another, and if he meets the man (whom he accused) at an assembly or meeting, the latter shall render him such satisfaction as the judges of Kent shall prescribe for them»); Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 21. See: Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36. (passim). 129 Laws of Hlothhere and Eadric, & 10 («If one-man charges another… then three days later they shall attempt to find an arbitration, unless the accuser prefers a longer delay. Within a week after the suit has been decided by arbitration, the accused shall render justice to the other…»); Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 21. See: Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36 (18 ff). 130 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (19). 131 Laws of Hlothhere and Eadric, 8 & 10; Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 21. 132 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (18). 124

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6.

Moreover, charter evidence shows that kings themselves had (in some cases) the onus (and the prerogative) of referring lawsuits (cases)133 of uppermost importance to binding arbitration.134 In so doing, they (kings and disputants) have chosen (and often would choose) arbitration over court adjudication.135 Both in Anglo-Saxon England and Middle Ages England, neither mediation nor arbitration were alternative dispute resolution (ADR) mechanisms operating outside the judicial system.136 Rather, arbitration and mediation were alternatives to court adjudication within the judicial system.137 Which suffices to quash the lingering myth of ADR altogether.138 There was a bevy of reasons undergirding the disputants’choice of forum.139 «One may have been whether the parties wished to have their dispute aired before the community in the open forum of the assembly or court, or preferred, instead, the privacy of a more closed arbitral forum. (….) some litigants appear to have favoured placing their lawsuits before public assemblies because they believed the openness of the process would ensure its fairness (…)».140 But, again, there is more to it: «some litigants involved in private disputes, however, appear to have preferred arbitration so that their lawsuits could be decided by peers of choice».141 Expediency,142 briskness, swiftness, and a streamlined procedure were simultaneously a touchstone and a benchmark underpinning the choice for arbitration over court adjudication. A fairly good reason might have been behind such a

7.

8.

133

Laws of Hlothhere and Eadric, 7; Ethelstan II, 10; Laws of I Edward, 1; Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 19, 115–133, passim. Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36. 134 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (19). 135 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. Laws of Hlothhere and Eadric, 7; Ethelstan II, 10; Laws of I Edward, 1; Frederick Levi Attenborough (editor and translator), Laws of Ethelbert, I, Laws of the Earliest English Kings, cit.: 19, 115. 133, passim (arbitration had very detailed regulations concerning discovery and fact-finding, especially those related with lawsuits in which ownership of personal property and business transactions were hotly discussed). 136 Todd, Margo, “For eschewing of trouble and exorbitant expense”: Arbitration in the Early Modern British Isles”, Journal of Dispute Resolution, (2016) (1/4), (2016): 7 ff and passim, which I have followed closely. 137 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (19 footnote). 138 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (19 ff and passim) (arbitration and court adjudication were judicial synonyms. The extent of fact-finding and discovery either in arbitral or court adjudication warrants such an affirmation). 139 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (19). 140 Id. 141 Id. 142 Id.

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choice: disputants would rather avoid the public assembly.143 Kings themselves would often do the same. More often than not, kings would choose arbitration over litigation based on the relevance, intricacy, and delicacy of the case.144 9. Not all the cases are (were) suitably tailored to be entertained in a court of law after all. At the end of the day, a good settlement is all one can (and should) yearn for. Anglo-Saxon England’s bore that assertion (truly an axiom) very firmly in mind indeed.145 Hybrid (or mixed) dispute resolution mechanisms such as Mediation-Arbitration (which goes by the acronym of Med-Arb) or the opposite, Arbitration-Mediation (which goes by the acronym of Med-Arb), were rather common back then. Which puts the novelty and (putative) avant-gardist nature of such dispute resolution mechanisms at odds. 10. Often, either the judge or the arbitrator would cajole (sometimes: coax) disputants to ironing out the issue at stake with a view to hammer out a settlement agreement. This would happen either before or after the judge or the arbitrator rendered his binding decision. In the latter case, before those judgments on the merits were finalized by oath-swearing.146 Either way, paving the way to reconciliation was the overriding goal.147 This can be both hailed as a Med-Arb or an Arb-Med, depending on which dispute resolution mechanism the disputants have primarily built on. Either way, and that is main point in this regard, «decision-makers appear to have changed hats, acting not as decision-makers, but as facilitators of settlement negotiations which left the parties with the ultimate choice of accepting the legal judgement or reaching a better outcome for themselves».148 11. This state of affairs (settling disputes both before and after judgments on the merits being rendered by either adjudicators or arbitrators) is neither flabbergasting nor bewildering. By the tenth century, Anglo Saxon England´s dispute resolution had been deeply swayed by Roman Catholic Church’s paradigm of solving disputes with both law and love.149 Charter evidence gives credence to such a claim. A deep-seated practice of reconciliation and solving disputes through amicable means was rather modish back then. And Roman Catholic Church´s gospels and teachings lied at the heart of it. Here is why: «frequently and often it has come into my mind that sacred precepts and wise secular decrees promote Christianity and strengthen royal authority, further public interests and 143

Id. Id. 145 P. H. Sawyer, Anglo-Saxon Charters, An Annotated List and Bibliography, cit. 146 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (26). 147 P. H. Sawyer, Anglo-Saxon Charters, An Annotated List and Bibliography, cit. 148 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36. (26). 149 Michael Clanchy, “Law and Love in the Middle Ages”, Disputes and Settlements: Law and Human Relations in the West, John Bossey (ed.) Cambridge [Cambridgeshire]; New York: Cambridge University Press, (1983): 47 ff. (on the importance of the tandem between law and love in Anglo-Saxon England). 144

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are the source of honour, (bringing) about peace and reconciliation, (putting) and end to strife and (improving) the whole character of the nation».150 12. Such a widespread practice of promoting reconciliation (undergirded by the Roman Catholic Church’s ideology that resonates with both law and love) is deeply woven into the fabric of Anglo-Saxon England Charter evidence. According the laws of King Henry I: «agreement prevails over law and love over judgement and disputants are brought together by love and separates by judgment» «it is generally true that agreement prevails over law».151 13. There are some conclusions to be withdrawn from this in-depth historical account: (i) Luhmann’s social sub-systems (in this case, economy, law, political ideology and foremost religion) have interacted with dispute resolution on a permanent basis; (ii) the «seminal» multi-door courthouse idea born in the United States of America is far from being a earth-shattering creation which (allegedly) dates back the twilight of twentieth century; (iii) manifold hybrid processes (such as Med-Arb or Arb-Med) were rather common in AngloSaxon England legal procedure as both court-adjudicators and arbitrators would frequently «change hats» with a view to hash out a settlement agreement «at love», thus casting a mantle of doubts on its novelty; (iv) just like the New Jersey’s Quakers would do centuries later, Anglo-Saxon England’s legal procedure was aimed at spurring reconciliation within the community and to allay (and mostly stamp out) the risk of ever-lasting strife between the estranged (and often frazzled) disputants. 14. (v) Roman Catholic Church’s-inspired penitential justice was (to a certain degree) the forebear (or the harbinger) of England’s Woolf reforms of 1999 so as to provide grounds for imposing costs to disputants unwilling to contemplate mediation in good faith; (vi) arbitration, mediation, and negotiation were seen as a dispute processing continuum (as a part of the whole legal procedure) and not as ADR (alternative dispute resolution) mechanisms in Anglo-Saxon England152 ; (vii) In Anglo-Saxon England´s, arbitration, mediation, and negotiation were alternatives to court adjudication within the remit of the system of administration of justice as opposed to alternatives to court adjudication outside the system of administration of justice; (viii) in this vein, makes hardly any sense to consider «ADR» as extrajudicial alternatives to court adjudication and subsequently include them on the multi-door courthouse dispute resolution framework; (ix) arbitration, mediation, negotiation and court adjudication are (were) sheltered under the all-embracing umbrella of the right to access to justice. 150

Laws of Ethelred, & 1, Agnes J. Robertson (editor and translator), The Laws of the Kings of England from Edmund to Henry I: 131 (italics added). 151 Michael Clanchy, “Law and Love in the Middle Ages”, cit.: 49 ff (italics added). See: Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, cit.: 1–36. (30 ff). 152 Valerie A. Sanchez, “Towards a History of ADR: The Dispute Processing Continuum in AngloSaxon England and Today”, cit.: 1–36.

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3.2 Conclusion §§ 1. One of central contentions arisen from the first tier of my Four-Tiered Model of Mediation (Social Dynamics of Mediation) is that Luhmann’s social sub-systems (ranging from culture, religion, political ideology, economy, society, philosophy to law) have intercommunicated externally with each other (and thus have cross-fertilized each other) for a long-winded span of time. §§ 2. To adroitly premise such an important claim, I have undertaken a both finegrained and full-scaled historical account on how mediation and arbitration (as other hybrid mechanisms such as Arb-Med and Med-Arb) unfolded in AngloSaxon England. §§ 3. Such an in-depth historical account has unlocked rather gripping findings. The first of which is that not only Luhmann’s social sub-systems have interacted permanently with each other throughout most of the legal history (and for) a drawn-out amount of time, but, and foremost, certain social sub-systems (like culture, philosophy, and religion) have shaped other social sub-systems (law and mediation). §§ 4. The second of which is the pivotal role that Roman Catholic Church played in shaping mediation in Anglo-Saxon England, which adds further plausibility to my newly-crafted concept of social sub-systems in a constant state of crossfertilization. §§ 5. The third of which is that mediation and arbitration were alternatives to court adjudication operating within the purview of the system of administration of justice, which suffices to quash the lingering myth of «ADR». §§ 6. The fourth of which is that the penitential justice brought forth by Roman Catholic Church in Anglo-Saxon England was the harbinger/forerunner of the UK Woolf reforms of 1999 as far as the imposition of costs to disputants unwilling to contemplate mediation in good faith is concerned, which is to cast doubts on its novelty. §§ 7. The fifth of which is that Roman Catholic Church in Anglo-Saxon England laid down the foundations upon which stood a tantalizing multi-layered dispute resolution framework, which bore a close resemblance with the hackneyed multidoor courthouse idea brought about by Professor Frank Sander at the muchacclaimed Pound Conference of 1976, which is (also) to cast doubts on its novelty.

Part III

The Second Tier of the Four-Tiered Model of Mediation: Cultural Dynamics of Mediation

Chapter 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 1. The rationale behind the creation of a Four-Tiered Model of Mediation has been skeletally sketched out in Part 1, Chap. 1 of this book. Part 3’s (devoted to Cultural Dynamics of Mediation) sweeping goal is to premise my central contention that one of the most important social sub-systems (culture) has a profound impact on the unfolding of dispute resolution (in general) and on mediation (in particular). 2. Culture (a crucially important Luhmann’s social sub-system) has been singled out (and fetched out from a wide range of Luhmann’s social sub-systems) for a good reason: to paint this paramount social sub-system in a fresh light in the remit of mediation. To cater to that, Luhmann’s social sub-systems theory will be briefly fleshed out at the inception of Part 3 of this book with a view to add further plausibility to my central claim that social sub-systems, unlike stated by Luhmann, do interact permanently with (in that they cross-fertilized) each other. 3. The foregoing fresh light will pave the way to lay down the foundation upon which stands a new style of mediation. Which happens to be adaptive mediation. However, the overriding importance of culture in the purview of mediation is not by all means so narrow. On the heels of such seminal assertion, I argue that a revamped approach to voice and self-determination is in dire need of being carved out. Pursuant to which the cultural differentiation of voice and the different levels and tonalities of voice must be portrayed against the backdrop of each cultural background (ranging from cultures of dignity, cultures of face to cultures of honour). 4. Meanwhile, one must flesh out the connections (and interplay) between the first tier (Social Dynamics of Mediation) and the second tier of my Four-Tiered Model

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_4

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of Mediation (Cultural Dynamics of Mediation), the foundations upon which stand my newly-crafted concepts of: (i) social crystallization; and (iii) social synthesis.

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) 4.1.1.1

Social Crystallization: Macau’s Two-Layered Law and Social Reality and Anglo-Saxon England

1. What does social crystallization stands for? What consists of? Against the background of the fine-grained historical account undertaken in Part 2 (Social Dynamics of Mediation), social crystallization amounts to a crystallization between two social sub-systems (ranging from culture, religion, society, economics, politics, philosophy, to law and dispute resolution) in a given time period and in a given jurisdiction. 2. Macau’s one-and-only two-layered law and social reality and two-layered cultural originalism stands as prototypical examples of social crystallization. From the middle of the sixteenth century onwards, culture, philosophy (Confucianism) and law and mediation (three remarkably important Luhmann’s social sub-system) have crystallized at the first layer of law and social reality and at the first layer of Chinese cultural originalism (to which Chinese non-converted to Christianity have abided by ever since). 3. Anglo-Saxon England (in the eleventh century) resonates with, and is the encapsulation of, social crystallization. Mainly because of the social crystallization between religion and law and dispute resolution back then, which has sent ripples across, and thus traversed, the whole legal eternity. Thus, swaying the (tagged) Frank Sander’s multidoor courthouse idea, which would not surface until the twilight of the twentieth century pursuant the much-acclaimed Pound Conference of 1976. 4. The seminal concept of penitential justice (both a lodestar and a flagship of the unique dispute resolution system built by the Roman Catholic Church in AngloSaxon England), which would deeply influence the very concept of imposition of costs to disputants unwilling to contemplate mediation in good faith arisen from the UK Woolf reforms of 1999, stands as a paradigmatic example of the social crystallization between religion and law and dispute resolution in AngloSaxon England by means of which the Roman Catholic Church shaped dispute resolution in, and for, centuries to come.

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Social Synthesis and Collective Sensemaking: The Dire Need to Shine Light on, and Drill into, a Given Jurisdiction’s Cultural Background and Underlying Social Backbone to Punctiliously Design the Perimeter of Disputes to Be Included in the Purview of Pre-suit Court-Connected Mandatory Mediation With an Easy Opt-Out

1. Social Synthesis amounts to a concept which, to be fulfilled, begs for the need of a given lawmaker or policymaker to drill into, and shine light on, a given jurisdiction cultural background and underlying social backbone with a view to punctiliously design the perimeter of disputes to be included within the purview of pre-suit court-connected mandatory mediation with an easy opt-out. The matters to be included within the remit of pre-suit court-connected mandatory mediation with an easy opt-must be revised (and reassessed) from time to time. 2. The underlying social reality is to dictate which matters are to be included and which matters are to be excluded from the breadth and scope of pre-suit mandatory mediation. Such a universe of matters hinge upon solely (and squarely) a given jurisdiction’s underlying social reality and social backbone. Here lies the paramount importance of the foregoing collective sensemaking, which has been skeletally sketched out in Part 1, Chap. 1 of this book.1 There is no such thing as a «one size fits all», much less a to-be-frowned-upon «catch-all framework», in this regard. 3. To capture the interplay between two paramount Luhmann’s social sub-systems (culture and law), light must be cast upon Luhmann’s Social Systems Theory with a view to support my central claim that Luhmann’s social sub-systems do intercommunicate externally with (and thus cross-fertilize) each other on a permanent basis.

4.1.2 Luhmann’s Systems Theory and Social Sub-systems: A Brief (Thumbnail Sketch) Overview 4.1.2.1

How Do Luhmann’s Social Sub-Systems Work and Communicate (If Any Communication Is to Be Seen and Accounted for): Introduction

1. Legal sociology would not be the same without him. The much-acclaimed German sociologist Niklas Luhmann laid down the foundations upon which the earth-shattering Systems theory rests upon.2 Hardly any surprise stems from the fact that his fine-grained theory has sent ripples across stagnant waters. No 1

Introduction: Part 1, Chap. 1, point 1 of this book (on the fundamental tenets of collective sensemaking). 2 In German doctrine, Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie. Frankfurt am Main: Suhrkamp, (1984) (1987): 8 ff.

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surprise springs from the fact that his theory has received blistering criticism over the course of years either.3 2. Whilst this essay has no intention whatsoever to canvass, drill into, and throw light on, the origins of Sociology,4 a research question, out of academic curiosity, crops up: what consists of Systems Theory?5 For the polymath German sociologist, everything is society. Everything carries (directly or indirectly) social meaning.6 «For Luhmann, everything social makes up society and there can be no social meaning without society—and that society is world society».7 This very concept of society stands in stark contrast with a wide range of deep-seated and agreedupon sociological axioms.8 ,9 According to Luhmann, the modern society can be

3

Harshly (yet justly) lambasted by its immobility, lack of social dynamics and intercommunicability with other social sub-systems, such as culture, society, politics, law, economics, religion, history, sociology, philosophy. See in German doctrine, Jürgen Habermas, “Exkurs zu Luhmanns systemtheoretischer Aneignung der subjektphilosophis- chen Erbmasse”, in: J. Habermas: Der philosophische Diskurs der Moderne. Frankfurt am Main, Suhrkamp (1985): 426–445. 4 In German doctrine, Niklas Luhmann/Jürgen Habermas, Theorie der Gesellschaft oder Sozialtechnologie: Was leistet die Systemforschung?, Frankfurt am Main, Suhrkamp (1972): passim. 5 In German doctrine, Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, cit.: 8 ff. 6 In German doctrine, Niklas Luhmann, Die Gesellschaft der Gesellschaft (2 vols), Frankfurt am Main, Suhrkamp (1997): passim (historically, «the notion of «systems theory» as a short-hand description is primarily due to the fact that Luhmann’s work received much public attention as being somehow positioned against the work of Jürgen Habermas and that main difference between the two was always far more in relation to the role accorded to social systems in society rather than the theory of social differentiation (let alone social evolution which barely features in Haberman’s work at all»). See: Mathias Albert, Luhmann and Systems Theory, Oxford Research Encyclopedia of Politics, Oxford, Oxford University Press, (2019): 3. I will follow this excellent piece of research very closely. 7 Mathias Albert, Luhmann and Systems Theory, cit.: 3. 8 M. Albert/B. Buzan/M. Zürn (Editors), Bringing Sociology to International Relations. World Politics as Differentiation Theory, Cambridge, United Kingdom, Cambridge University Press, (2013) (highlighting, however, the autonomy of the social sub-system politics in the remit of differentiation theory). 9 Classical notions according to which modern society functions considering norms, values, or one of the many social variations; see Mathias Albert, Luhmann and Systems Theory, cit.: 3.

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clutched insofar is functionally differentiated. 10 ,11 Social differentiation12 lies at the heart of Luhmann’s conception of society.13 3. The concept of communication stands as a bedrock of Luhmann’s theory of society.14 ,15 According to Luhmann,16 communication begets, yields, and breeds communication. The social world itself is constituted through communication and through communication only.17 «It is, in this sense, a world of communication. Only communication relates to communication».18 The communicationthrough-and-through axiom could be portrayed as a flippant remark or even a rather facetious one. Yet such is not the case. Luhmann’s stance on communication is a rather outlandish, garish and (even a gaudy) one indeed. Here is why: downrightly excludes, and thus weeds out, human beings from its purview.19 Excludes, and thus casts aside, human beings from the overall functioning of social systems20 : «in a conceptual -if not always practically consequential – move away from sender-receiver models of communication».21 4. Luhmann outlined a social system in which social meaning (and hence social differentiation) is created within the remit of the social sub-systems.22 Such selfreferred social meaning23 is to be grasped, understood, and thus duly latched on, by citizens.24 Not the other way around. Luhmann dubs this as psychic systems («consciousness»)25 : «psychic systems («consciousness») are identified to be

10

W. Rasch, Niklas Luhmann’s Modernity: The Paradoxes of Differentiation, Standford, CA, Standford University Press, (2000): 18 ff (dissertating critically on Luhmann’s notions of «political power», «the state», the «political steering» and the «self-description of the political system»). 11 In German doctrine, K. P. Japp, “Regionen und Differenzierung”, Soziale Systeme, 13, (2007): 188–195 (echoing the same views). 12 Niklas Luhmann, The Differentiation of Society, New York, Columbia University Press, (1982): passim (providing nuanced sociological accounts of his concept of theory of society´s social differentiation). 13 Mathias Albert, Luhmann and Systems Theory, cit.: 1 (arguing that though Luhmann’s theory has somewhat overlooked the dimension of international politics, it opens avenues to account for it in innovative ways). 14 Niklas Luhmann, Social Systems, Stanford, CA, Stanford University Press, (1995): passim. 15 Niklas Luhmann, Die Gesellschaft der Gesellschaft (2 vols), cit.: passim. 16 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, cit.: 8 ff and passim. 17 Mathias Albert, Luhmann and Systems Theory, cit.: 4. 18 Id. 19 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. 20 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. See also: Niklas Luhmann, Die Gesellschaft der Gesellschaft (2 vols), passim. 21 Mathias Albert, Luhmann and Systems Theory, cit.: 4. 22 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. 23 Niklas Luhmann, Essays on Self-Reference, New York, Columbia University Press, (1990): passim. 24 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. 25 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, cit.: 8 ff.

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systems based on the processing of meaning as well, but the meaning generated in psychic systems is never directly accessible for social systems».26 5. The quintessential concepts of self-reference and autopoiesis are tightly interlocked with the influential concept of consciousness. Which accounts to nothing but to one of the perceived drawbacks of Luhmann’s social theory. In Luhmann’ s view, social systems communicate within themselves.27 Social systems communicate internally.28 Not externally. Its social meaning can only be observed from within. Social systems’ social meaning can be accessed, assessed, and ascertained «on the basis of specific codes, programs, symbolically generalized media of communication, etc.».29 6. Although Luhmann allows communication within each social system, neither allows intercommunication between each social sub-system nor allows its external observation. Instead of focusing on the seminal research question: «what holds the society together», Luhmann asks another research question: «how does communication continue»?30 4.1.2.2

1.

2.

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Luhmann’s Types of Social Systems (Interaction Systems, Organizations, and Function Systems)

Throughout the past few chapters, I have championed for the creation of a new doctrinal taxonomy named social sub-systems in permanent interaction.31 Building on a fine-grained law-in-context methodology, I have brought forward historical examples with a view to portray (and hence prove) how have social sub-systems (ranging from culture, philosophy, religion and law) interacted externally (and how have they cross-fertilized) with each other throughout most of the legal history. My newly-crafted concept of social sub-systems in permanent interaction is far cry from Luhmann’s conceptual stance. Especially from the social mobility, social flexibility, and social intercommunication between social sub-systems point of view. I have brought forth a couple of historical examples to support my central claim that social sub-systems interact (ed) permanently. For the time being, Luhmann’s social systems immobility is in dire need of being fleshed out. Inflexible. Monolithic. Obdurate. Immovable. Unyielding. Fossilized. Unbending. And so forth. These are adjectives which could suit Luhmann’s

Mathias Albert, Luhmann and Systems Theory, cit.: 4. Niklas Luhmann, Social Systems, cit.: passim. 28 Niklas Luhmann, Die Gesellschaft der Gesellschaft (2 vols), cit.: passim. 29 Mathias Albert, Luhmann and Systems Theory, cit.: 4. (stating that «while ascriptions of meaning to psychic systems can be observed in social, what was “really meant” can never be known and thus be of immediate relevance in a social system»). 30 Mathias Albert, Luhmann and Systems Theory, cit.: 4. 31 See: Part 3, Chap. 4, point 4.2.2.2. of this book (on the plausibility of the concept of social sub-systems in permanent interaction). 27

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5.

6.

7.

8.

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systems theory like hands in glove. A close-range view at Luhmann’s core social theories elicit (and confirms) such an anecdotal impression. In Luhmann’s view, society is underpinned by manifold interaction systems. Not mobile. Not flexible. Not ductile. Much less intermingling with each other. Always crystallized on its own conceptual capsule. Invariable looked upon from a bird´s eye. Mobility (if any) can only be accessed, assessed, and ascertained from within each social system. There is a wide range of interaction sub-systems, which require human presence. Unlike organizations and a bevy of function systems, which are not interaction sub-systems. On that account, they do not require human presence. According to Luhmann, «unlike organizations and function systems, interaction systems require presence. A meeting, a class in school, a conversation, and the like are at one point simply over. Interaction systems cannot be recreated, but they can be remembered and referred to in future communication, although it is quite likely that many, if not most interaction systems will not be referred to by other social systems in the future and will simply be forgotten. Not every interaction system draws on and actualizes function system-specific communication (being about monetary value, legality, political power, etc.). However, if it does and is later referred to and remembered, an interaction system contributes to the continuation of a function system».32 Another type of social system to be remarked upon is the organizations social systems. As hinted above, the interaction social systems require human presence. On the opposite pole, organizations as a social system do not. Interaction social systems are characterized by presence. By way of contrast, organizations are characterized by duration. As a result, presence is utterly unnecessary in organizations.33 Whilst admitting both the internal mobility and synchronized interactions within organisational social sub-systems, Luhmann abhors the external mobility, flexibility, and external communication of , and between, social sub-systems. Such an internal mobility achieves «the miracle of synchronizing interactions, in spite of the fact that these always and necessarily take place simultaneously, in their pasts and in their futures».34 Against this background, modern society (modernity for short)35 (or the lack thereof36 ) is a society constituted, and formed, by formal organizations.37 The functional differentiation of each social sub-system as comprised of, and by, a

Mathias Albert, Luhmann and Systems Theory, passim. Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. 33 Mathias Albert, Luhmann and Systems Theory, passim. Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. 34 See: Mathias Albert, Luhmann and Systems Theory, cit., passim. Niklas Luhmann, Die Gesellschaft der Gesellschaft (2 vols), cit., passim. 35 Niklas Luhmann, Observations on Modernity, Stanford, CA: Stanford University Press, (1998): passim. 36 W. Rasch, Niklas Luhmann’s Modernity: The Paradoxes of Differentiation, cit.: passim. 37 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, cit.: 8 ff and passim.

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given society lies at its heart. To cater to the (internal) functional differentiation38 and social differentiation of each social sub-system, «an increasing amount of synchronization is required. Organizations fulfil this demand throughout society. However, organisations are not “parts” of function systems. Communication by organizations is to a large degree communication which is functionally specific and, as such, part of a specific function system. For example, a political party may use quite a lot of political communication. Yet, as an organization it will invariably also utilize legal communication (it enters contracts, can be sued in a labour dispute, etc.) or economic communication (it buys equipment, sells books, etc.), and so on. In doing so it contributes to the continuation of the political system, the legal system, the economic system, and so forth. But it is not a “part” of these systems; rather it is itself one of these systems».39 9. With this backdrop in mind, the more one drills into Luhmann’s social systems theory,40 the more the impression of the lack of external mobility of social sub-systems is elicited and confirmed. As one enters the function system’s analysis such first-glance impression is to morphed into a rock-solid, and air-tight, certainty. In building social sub-systems as a rigid,41 monolithic, self-referred,42 auto-poietic43 fraction of society, Luhmann has hammered the last nail in the coffin of epistemological autism from which there is no coming back. 10. Luhmann asserts that function systems,44 being auto-poietic and self-referenced systems,45 produce all their elements within themselves.46 Neither an external communication nor an external interaction between social sub-systems is allowed or possible. Let alone to be accounted for, much less to be remarked upon. Which means that: «there can be no political communication outside of the political system, no economic communication outside the economic system»,47 no legal communication outside the legal system, no cultural communication outside of the cultural system, no religious communication outside of the religious system, and no societal communication outside of the societal system «and so forth».48 I beg to differ.

38

Niklas Luhmann, The Differentiation of Society, cit.: passim. Mathias Albert, Luhmann and Systems Theory, cit.: 5. 40 Niklas Luhmann, Observations on Modernity, cit.: passim. 41 Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, cit. 42 Niklas Luhmann, Essays on Self-Reference, cit.: passim. 43 Mathias Albert, Luhmann and Systems Theory. See: Niklas Luhmann, Die Gesellschaft der Gesellschaft (2 vols). Niklas Luhmann, Soziale Systeme. Grundriss einer allgemeinen Theorie, passim. 44 Niklas Luhmann, Social Systems, cit.: passim. 45 A. La Cours/A. Philippopoulos-Mihalopoulos (Editors), Luhmann Observed: Radical Theoretical Encounters, Basingstoke, Palgrave, (2013): passim. 46 Mathias Albert, Luhmann and Systems Theory, cit.: 5. 47 Id. 48 Id. 39

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11. Building on an in-depth historical account undertaken in Part 2 (Social Dynamics of Mediation), historical examples that mirror the manner through which social sub-systems have interacted and communicated externally (and thus have cross-fertilized) with each other throughout most of the legal history abound. In addition to that, such a permanent (external) interaction between certain social sub-systems (ranging from culture, religion, and philosophy) has shaped other social sub-systems (law and mediation). As an upshot, and unlike stated by Niklas Luhmann, Social sub-systems in permanent interaction are in (ever-lasting) state of cross-fertilization. The Much-Needed Interplay Between Social Self-Significance and Social Synthesis Regarding the Disputes to-be-Included Within the Purview of a Pre-suit Court Connected Mandatory Mediation with an Easy Opt-Out: A Dash of Criticism on Luhmann’s Take on Social Evolution With a View to Usher in Sough-After Collective Sensemaking in a Given Jurisdiction 1. Luhmann’s take on social evolution and theory of society prompt to the following utterances: (i) how can one ascertain the social evolution if there is no communication outside the compass of society?; (ii) How can the theory of society and social evolution be intrinsically linked (or intermingling with each other) if they do not communicate (much less cross-fertilize) with each other? (iii) If modern society is a monolithic block not amenable to be swayed by exterior influences, how can communication occur? (iv) Does internal communication suffice to breed, yield and beget social evolution? 2. An assertive answer to the foregoing questions must not lose sight of the fact that, to be socially functional, social sub-systems must have a two-fold framework: (i) on one hand, aimed at being fully functional, social sub-systems must communicate internally with its own social elements (people, self-referred meanings, organisations, entities) thereby creating permanent and dynamic social self-significance (as opposed to Luhmann’s permanent and static social selfreference); (ii) on the other hand, such social self-significance is to be relayed (and thus conveyed) to the community as a whole (not society, which is on my concept a social sub-system, and not a system theory itself). 3. In being transferred to the community (constituted by a cohort of people that live and thrive within circumscribed geographic boundaries), the social selfsignificance of one social sub-subsystem can inter-communicate externally with the social self-significance of another social sub-system. This external communication will enable the creation of permanent and actualized social synthesis within the realm of a given jurisdiction. The gamut of disputes to be included within the purview of pre-suit mandatory mediation with an easy opt-out, which must be revised from the time to time with a view to achieve the

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sought-after permanent alignment between law and social reality and collective sensemaking,49 stand as archetypical examples of social synthesis. 4. This is of paramount importance in mediation which (as fleshed out in Part 2 – Social Dynamics of Mediation) was swayed by the permanent interaction between social sub-systems throughout most of the legal history. The cross-fertilization between different social sub-systems (being that culture, religion, philosophy and law and dispute resolution) prompted the choice for mediation (and sometimes arbitration) in the singled-out jurisdictions (Macau and Anglo-Saxon England). This a «smoking gun» proof that social sub-systems in permanent interaction (a newly-crafted concept brought forth on this book) is a by-product of social synthesis. Luhmann’s Social Sub-systems in the «aftermath of the divorce»: «Why Can´t We All (Social Sub-systems) Get Along»? The Plausibility of the Concept of Social Sub-systems in Permanent Interaction (or in Cross-Fertilization) Against the Background of a Couple of Historical Examples Harvested at the First Tier of the Four-Tiered Model of Mediation (Social Dynamics of Mediation) 1. As hinted above, Luhmann’s social sub-systems have been tussling with communication issues. They might «file the divorce papers» sometime soon accordingly. A research question crops up: can´t they all (social sub-systems) get along with each other «after the divorce»? Even for the «children´s sake» (self-reference and autopoiesis arisen from each social sub-system taken in isolation)? The prospects do not show promise though: «in the entirety of life´s work, Luhmann only superficially touched on the question that is linked to the dynamic of social communication between the various subsystems of modernity».50 2. Hardly any surprise springs from the fact that «Luhmann’s system theory was, for the most part, content with pointing out that the various subsystems had no means for interfering with the autonomous rationality of other subsystems, since impulses coming from one subsystem towards another can only be taken as a mere irritation of the latter subsystem, to which this subsystem responds on the basis of its own autopoiesis».51 3. I have proved, premised on a couple of historical examples (Macau and AngloSaxon England) brought forth in Part 2 (Social Dynamics of Mediation), that such is not the case. In stark contrast, mediation (law—a Luhmann’s social subsystem) has been extensively influenced by other social sub-systems throughout most of the legal history. 49

See: Introduction: Part 1, Chap. 1 of this book (on collective sensemaking). Bulgsu Bognár, “Luhmann’s Functional Subsystems of Modern Society—The Character of Horizontal and Vertical Relationships”, Polish Sociological Review, 182 (2013): 137-152 (138 ff and passim), whose research I will follow closely. 51 Id. 50

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4. As extensively shown at the first tier of the Four-Tiered Model of Mediation (Social Dynamics of Mediation), law has been vastly swayed by other Luhmann’s social sub-systems, such as: (i) culture (e.g., the pivotal role that the Chinese Confucianism has played in shaping cultural originalism in Macau52 and (ii) religion (e.g., Roman Catholic Church has played a key role in shaping AngloSaxon England´s mediation and thereafter Frank Sander´s vision of a multidoor courthouse in 197653 and the UK Woolf reforms of 199954 and (iii) philosophy (e.g., Mid nineteenth century surge of Macau-as-a-part-of-Portugal, which was prompted by the so-called sovereignty movement on heels of the French Illuminist-charged ideology of State empowerment,55 which swept across Europe and beyond). Here lies the importance of my concept of social sub-systems in permanent interaction. 5. The pinpointed social sub-systems not only have shaped entire dispute resolution systems (law and mediation) from scratch, but also have created dispute resolution mind-sets from scratch on the process. Just think of the example of the influence of Roman Catholic Church on Anglo Saxon England’s dispute resolution anchored in penitential justice and law and love, which deeply swayed the UK Woolf reforms of 1999 in United Kingdom at the twilight of the twentieth century. To add further plausibility to the foregoing claim, a fine-grained attention will be given to this paramount Luhmann’s social sub-system: culture.

52

See: Part 2, Chap. 2, point 2 to point 2.2. (on the influence of Chinese Confucianism in shaping the Chinese cultural originalism and shaping the unfolding of dispute resolution in Macau). 53 See: Part 2, Chap. 3, point 3 to point 3.3.3.1. (on the influence of Roman Catholic ‘Church and of Anglo-Saxon England in shaping Frank Sander´s multidoor courthouse idea further the Pound Conference of 1976). 54 See: Part 2, Chap. 3, point 3.3.3. (on the influence of the penitential justice laid out by Roman Catholic ‘Church in Anglo-Saxon England in shaping the imposition of cost to disputants unwilling to contemplate mediation in good faith prior to resorting to court-adjudication or litigation set forth by the UK Woolf reforms of 1999). 55 See: Part 2, Chap. 2, point 2.1.6.1. (on the influence of French´s Illuminism philosophy, which stood at the heart of (the inception of) the Portuguese´s sovereignty-turn over Macau, which has set in motion the farewell to the two-layered law and social reality, which had been in force in Macau since the sixteenth century until roughly the middle of the nineteenth century).

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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) 4.1.3.1

Cultural Logics of Dignity

1. A cohort of cross-cultural applied psychology (much-acclaimed) scholars laid down an academic concept in view of which culture (a paramount Luhmann’s social sub-system, as previously shown) is to be painted in a fresh light. Being that the cultural logics of honour,56 face,57 and dignity cultures.58 2. Dignity plays a starring role in western-based cultures of dignity.59 «Moral consciousness»60 is an expression often coined to portray its overriding importance. Dignity has been commonly defined as «the conviction that each individual at birth possessed an intrinsic value at least theoretically equal to that of every other person».61 The quoin stone in cultures of dignity is that «each individual has inherent worth, and this worth does not depend on the esteem of other people. This worth is neither conferred by others nor it can be taken away by them. As such, it is inalienable».62

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J.A. Vandello/D. Cohen, “When believing is seeing: Sustaining norms of violence in cultures of honor”, M. Schaller/C.S. Crandall (Eds.), The psychological foundations of culture, Mahwah, NJ, Erlbaum, (2004): 281–304. 57 N. Zane/M. Yeh, “The use of culturally-based variables in assessment: Studies on loss face”, K. Kurasaki/S. Okasaki/S. Sue (Eds.), Asian American mental health, Norwell, MA, Kluwer, (2002): 123–138. 58 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, Journal of Personality and Social Psychology, 100 (3) (2011): 507–526 (passim) (laid down the fundamental tenets of cultural logics of honour, face, and dignity cultures, which serves as a basis to my newly-crafted concepts of adaptive mediation and cultural differentiation of voice). I will follow this exciting piece of research very closely. 59 P. Berger/B. Berger/H. Kellner, The homeless mind, New York: NY, Random House, (1973) (giving nuanced accounts about modern and Western cultures). 60 P. Berger/B. Berger/H. Kellner, The homeless mind, cit.: 88. 61 E. Ayers, Vengeance and justice, New York, NY, Oxford University Press, (1985) (providing an overview about dignity cultures and their effects on the way that people think and behave). 62 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit. See: E. Ayers, Vengeance and justice, cit.

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3. Against this background,63 «dignity is relatively impervious to insults64 and threats from others».65 The focal point of dignity is lodged on the individual. The individual lies at the heart of dignity cultures. Hence the expression «glorification of the individual».66 In cultures of dignity, there is a perceived gap between the individual and the others. To keep his dignity unscathed, the individual is not to be vilified (or sullied) by the noxious influence of others. The individual is supposed to uphold his own moral integrity without being swayed by others. The un-permeability (or the lack thereof) to insults accounts as one of the bedrocks of cultures of dignity. No matter what others say (do or think), the individual´s dignity is neither to be besmirched nor tarnished. 4. As posited by Ayers: «sticks and stone may break my bones, but names will never hurt me».67 The dignity resonates with, and is the encapsulation of, a rather simple motto: «dignity might be likened to an internal skeleton, to a hard structure at the centre of the self».68 As a reminiscence of Roman-Catholic-Church-inspiredcommandments, guilt69 (as opposed to shame, a linchpin of both cultures of honour70 ,71 and cultures of face72 ) is an important device of self-control73 and

63

D. Oyserman/S.W.S. Lee, “Does culture influence what and how we think?”, Psychological Bulletin, 134, (2008): 311–342 (noting the impact that culture has in shaping our thoughts, mindsets, acts, behaviours). 64 D. Cohen/R. E. Nisbett/B. Bowdle/N. Schwarz, “Insult, aggression, and the Southern culture of honor. An “experimental ethnography”, Journal of Personality and Social Psychology, 70 (1996): 945–960 (noting the high rates of both verbal and physical aggression in South American cultures of honour). 65 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 66 James M. Buchanan, The Collected Works of James M. Buchanan, Vol. 3. The Calculus of Consent: Logical Foundations of Constitutional Democracy, with a Foreword by Robert D. Tollison, Indianapolis, Liberty Fund, (1999): passim (canvassing the foundations of the «glorification of the individual»). 67 E. Ayers, Vengeance and justice, cit.: 20. 68 Id. Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 69 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 70 J.A. Vandello/D. Cohen/S. Ransom, “U.S. Southern and Northern differences in perceptions of norms about aggression: Mechanisms for the perpetuation of a culture of honor”, Journal of Cross-Cultural Psychology, 39, (2008): 162–177 (highlighting the cultural differences between U.S. Southern and Northern differences and the so-called perpetuation of a culture of honour). 71 D. Cohen/R. E. Nisbett, “Self-protection and the culture of honor: Explaining Southern homicide, Personality and Social Psychology Bulletin, 20 (1994): 551–567 (explaining Southern hemisphere homicide from a culture of honour point of view). 72 N. Zane/M. Yeh, “The use of culturally-based variables in assessment: Studies on loss face”, K. Kurasaki/S. Okasaki/S. Sue (Eds.), Asian American mental health, Norwell, MA, Kluwer, (2002): 123–138 (outlining the contours of loss-face shame in Eastern cultures). 73 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526.

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self-restraint. The imaginary metaphor of (real or imagined audience)74 suits guilt75 -charged issues arisen in cultures of dignity like hands in glove. 5. The primal source of self-worth76 and dignity lies on the individual alone.77 Dignity is not given by others. Let alone endorsed by others. Which does not mean that the individual has no role to play within the remit of social sub-systems (such as economy). The individual is praiseworthy of dignity for (inherently) who he/she is. Most of the western jurisdictions amount to archetypical examples of cultures of dignity.78 4.1.3.2

Cultural Logics of Honour

1. In stark contrast with cultures of dignity’s sole and square focus on the (glorification of the) individual, cultures of honour79 are premised on the idea80 that honour does not derives from the individual alone.81 Rather, honour-as-virtue and honour-as-precedence trump (and supersede) the individual. Cultures of honour do not place an intrinsic value on the individual alone.82 At least, not as a tokenvalue arisen from the eminent dignity of the individual. Cultures of honour extol virtue and notability instead. The individual deserves utmost respect and praise. Indeed. But he/she must earn it as to gain society´s praise and respect. Honour 74

R. Benedict, The chrysanthemum and the sword, Boston, MA: Mariner Books, (2006 a): passim; See R. Benedict, Patterns of culture, Boston, MA: Mariner Books, (2006 b): passim (on the metaphor of real or imagined audience). 75 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 76 Adam Smith, The theory of moral sentiments, Oxford, England, Clarendon Press, (Original work published 1759): passim (referring to the indelible stain of moral sentiments). 77 Thomas Hobbes, Leviathan, New York, NY, Penguin, (1982) (Original work published in 1651): passim (stating that the Leviathan state does not hinder individuality). 78 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526, whose research I have following closely. 79 P. M. Rodriguez Mosquera/A. Fischer/A. Manstead/R. Zaalberg, “Attack, disapproval, or withdrawal? The role of honour in anger and shame responses to being insulted”, Cognition and Emotion, 22, (2008): 1471–1498; P. Rozin, “Five potential principles for understanding cultural differences in relation to individual differences”, Personality and Individual Differences, 37, (2003): 273–283 (examining the role of honour in Southern cultures, especially in cases of verbal aggression). 80 H. Ijzerman/W. Van Dijk/M. Gallucci, “A bumpy train ride: A field experiment on insult, honor, an emotional reactions”, Emotion, 7 (2007): 869–875; Y.-H. Kim/D. Cohen/W. Au, “The jury and abjury of my peers: The self in face and dignity cultures”, Journal of Personality and Social Psychology, 98, (2010): 904–910; Y.-H. Kim/D. Cohen, “ Information, perspective, and judgments about self in face and dignity cultures”, Journal of Personality and Social Psychology, 36 (2010): 537–550 (examining the role of honour in Southern cultures). 81 M. Konner, “Evolutionary foundations of cultural psychology”, S. Kitayama/D. Cohen (Eds.), Handbook of cultural psychology, New York, NY, Guildford Press, (2007): 77–105 (emphasizing the evolutionary foundations of cultural psychology). 82 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526.

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cultures,83 «as a claim to precedence and to virtue, has both an external and internal quality».84 2. Cultures of honour both praises enthusiastically the value of a person and the value of a person in society’s very eyes.85 What really matters in cultures’ of honour eyes it is both the individual’s «estimation of his own worth, his claim to pride, but it is also the acknowledgement of that claim…his right to pride».86 Here is why: Honour «must be claimed, and honour must be paid by others. A person who claims honour but is not paid honour does not in fact have honour».87 3. There is an inextricable link between cultures of honour and countries with a feeble and worn out (ranging from null to tokenistic) Rule of Law.88 A culture of honourable violence is rather common in honour cultures.89 Weak or non-existent states are utterly unable to uphold (and ultimately enforce) the Rule of Law.90 Weak or non-existent states are utterly unable to enforce contracts and restore social harmony.91 Weak or non-existent states are utterly unable to protect the weaker from the predation of the strongest. Social imbalance breeds (and begets) inequality from the access to justice point of view. The law-of-the-strongest is a hallmark of cultures of honour. Especially in mediation settings. Thus breeding the to-be-frowned-upon (and gruesome) party autonomy tokenisation. 4. Against this background, cultures of honour have a penchant for (the thriving of) honourable violence (closely related with the sacrosanct male honour and the 83 J. Pitt-Rivers, “Honor”, D. Sills (Ed.), International encyclopedia of the social sciences, New York, NY, Macmillan, (1968): 509 ff (sketching out the characteristics and peculiarities of honour cultures in Southern cultures). 84 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 85 J. Pitt-Rivers, “Honour and social status”, J. Peristiany (Ed.), Honour and shame, London, England, Weidenfeld and Nicholson, (1966): 19–78 (on honour and shame). 86 Id. at 21. See: Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 87 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 88 J.A. Vandello/D. Cohen, “Male honor and female fidelity: Implicit cultural scripts that perpetuate domestic violence”, Journal of Personality and Social Psychology, 84, (2003): 997–1010 (parsing the relationship between male honour and female fidelity and the perpetuation of domestic violence). See: Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 89 J.A. Vandello/D. Cohen/R. Grandon/R. Franiuk, “Stand by your man: Indirect prescriptions for honorable violence and feminine loyalty in Canada, Chile, and the United States”, Journal of CrossCultural Psychology, 40, (2009): 81–104 (noting that the male honour is a key concept in cultures of honour). 90 J.A. Vandello/D. Cohen/S. Ransom (Eds.), “U.S. Southern and Northern differences in perceptions of norms about aggression: Mechanisms for the perpetuation of a culture of honor”, Journal of Cross-Cultural Psychology, 39, (2008): 162–177 (noting the thriving of an honourable violence in Latin American cultures, like Argentina, Chile, Mexico). 91 J.A. Vandello/D. Cohen, “When believing is seeing: Sustaining norms of violence in cultures of honor”, M. Schaller/C.S. Crandall (Eds.), The psychological foundations of culture, Mahwah, NJ, Erlbaum, (2004): 281–304 (carving out the contours of a culture of violence).

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female fidelity).92 «Cultures of honour tend to originate in «lawless» environments».93 Revanchism stands as another trademark of cultures of honour. «In such environments, payback becomes an organizing theme. An honourable person is trustworthy and can be counted on to pay back his or her debts. And an honourable person demands respect, will not tolerate being cheated or affronted, and will pay back wrongs done to him or to her».94 Positive reciprocity and negative reciprocity go hand-in-hand. Readiness to payback both the good and the bad deeds is «one aspect of what unifies honours-as-virtue with honour-as-precedence».95 5. Both Latin American cultures and African cultures (both cultures of honour) take both insults and defamation very seriously indeed.96 Hardly any surprise stems from the fact that insults and verbal aggressions trigger honourable violence in cultures of honour.97 The absence of both a robust and sturdy Rule of Law and an effective state protection (from a conflict-resolution point of view) incites (and emboldens) individuals to take matters into their own hands. 6. Here is lies the connection between cultures of honour and honourable violence. «Insults take on special importance in honour cultures, because they are probes or tests of who can do that to whom. A person establishes that he will not tolerate even small slights establishes that he cannot be pushed around on big issues either. In the absence of state protection, self-protection through violence or the credible threat of violence is necessary».98 Here is why: reputation is something to uphold for in Latin American cultures and African cultures (cultures of honour). The willingness to «strike back hard and fast» builds up a reputation in cultures of honour. Thereby keeping potential wrongdoers at bay. That is the reason «a reputation for toughness deters competitors who would enhance their own honour or claim to precedence by taking some of yours».99 ,100 7. The haughty sobriquet of «the Honourable Society» coined to honour cultures does not fall short of matching its description as an honourable violence-laden 92

J.A. Vandello/D. Cohen, “Male honor and female fidelity: Implicit cultural scripts that perpetuate domestic violence”, cit.: 997–1010. 93 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 94 Id. 95 Id. 96 D. Cohen/R. E. Nisbett/B. Bowdle/N. Schwarz, “Insult, aggression, and the Southern culture of honor. An “experimental ethnography”, Journal of Personality and Social Psychology, 70 (1996): 945–960 (noting the high rates of both verbal and physical aggression in Southern cultures of honour). 97 J.A. Vandello/D. Cohen, “When believing is seeing: Sustaining norms of violence in cultures of honor”, M. Schaller/C.S. Crandall (Eds.), The psychological foundations of culture, Mahwah, NJ, Erlbaum, (2004): 281–304 (on the honourable violence in cultures of honour). 98 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 99 Id. 100 Id. (noting presciently that «honour is unlike dignity in that honour has internal and external qualities that can be difficult to separate. Unlike inalienable dignity, honour can also be gained or it can be taken away, often thorough direct competition with others»).

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culture. Wherever (and whenever) the Rule of Law fades away and fizzles out, the spectre of mayhem draws near: «Whenever the authority of law is questioned or ignored, the code of honour re-emerges to allocate the right to precedence and dictate the principles of conduct: as among aristocracies and criminal underworlds, school boy and street corner societies, open frontiers and the closed communities where reigns «The Honourable Society».101 Countries like Chile, Colombia, Argentina, African and South American jurisdictions stand as prototypical examples of cultures of honour.

4.1.3.3

Cultural Logics of Face

1. Things work differently in cultures of face.102 Not in an opposite manner though. Like honour, face is interwoven to the way other people see (look to) the individual.103 In this respect, face and honour are interlocking concepts. Face and honour are thus intertwined and tightly interlocked. Sentiments (the others eyes and hearts) play a key role in both cultures of honour and cultures of face. To a certain extent, face and honour dovetail seamlessly: «Face is like honour in that the sentiments of other people are extremely important. Like honour, face also can involve a claim to virtue or to prestige».104 2. The similarities between cultures of honour and cultures of face do not dilute, much less dispel, the ginormous differences between them though. The role of expectations is starkly different in cultures of honour and in cultures of face. Cultures of face are premised on rigid, obdurate, unyielding, and inflexible hierarchies in which social cooperation amongst community members is not only expected, but warmly welcomed. On the opposite pole, in cultures of honour there is no thing as unbending hierarchies. Rather, it falls to the individual to 101

J. Pitt-Rivers, “Honor”, D. Sills (Ed.), International encyclopedia of the social sciences, New York, NY, Macmillan, (1968): 509 ff (sketching out the characteristics and peculiarities of (widespread violence in) honour cultures in Southern cultures). Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 102 M.J. Gelfand/L.H. Nishii/K.M. Holcombe/N. Dyer/ K. Ohbuchi/M. Fukuno, “Cultural influences on cognitive representations of conflict: interpretations of conflict episodes in the United States and Japan, Journal of Applied Psychology, 86, (2001): 1059–1074; M.J. Gelfand/L.H. Nishii/J. Raver, “On the nature and importance of cultural tightness-looseness”, Journal of Applied Psychology, 91 (2006): 1225–1244 (comparing the cultural influences on cognitive representations of conflict between cultures of face and cultures of dignity). 103 T. Hamamura/S. Heine, “The role of self-criticism in self-improvement and face maintenance among Japanese”, E. C. Chang (Ed.), Self-criticism and self-enhancement: Theory, research, and clinical implications, (2008): 105–122; T. Hamamura/Z. Meijer/S. Heine/K. Kamaya/I. Hori, “Approach-avoidance motivation and information processing: A cross-cultural analysis”, Personality and Social Psychology Bulletin, 35 (2009): 454–462 (providing an overview of cultures of face). 104 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526.

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build a reputation while competing socially for his/her honour amongst equals. As such «honour is contested in a competitive environment of rough equals».105 This is a tiny detail that makes all the difference in mediation settings. 3. Due to the pervasiveness of Confucianism in East Asian jurisdictions, members of cultures of face have a penchant for, thus displaying an enhanced proneness to, settle quarrels through amicable means.106 Cultures of honour display less proclivity to settle their disputes in a such a conciliatory manner. Even when they do, there is a heightened probability of weaker individuals being vanquished (often: trumped) by stronger and more capable individuals. 4. A culture of face and a rigid social hierarchy are interlocking concepts. Unlike in cultures of honour,107 face is not to be regarded in a competitive manner.108 Rather, in cultures of face people tend to cooperate109 with each other110 to preserve each other’s face111 with a view to bolster (and spur) harmony within their social112 circle.113 Moreover, «because it is bad form to cause another to lose face, formalities are carefully observed».114 Conflict is to be shunned at any cost.115 Open and direct conflict disrupts (impairs, and foremost, derails) 105

Id. See: Part 2, Chap. 2 of this book (on the influence of Chinese Confucianism in shaping the Chinese cultural originalism and shaping the unfolding of dispute resolution in Macau from solving disputes in an amicable manner standpoint). 107 Id. (noting that «in an honour culture, one person may take another´s honour and appropriate it as as his or her own; however, one cannot increase one´s face by taking another´s»). 108 As «unlike in honour cultures, it is not incumbent on the victim to directly redress the grievance him – or herself. Direct retaliation would be undesirable because it would further upset the harmony of the system»; Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 109 M.J. Gelfand/L.H. Nishii/K.M. Holcombe/N. Dyer/ K. Ohbuchi/M. Fukuno, “Cultural influences on cognitive representations of conflict: interpretations of conflict episodes in the United States and Japan, Journal of Applied Psychology, 86, (2001): 1059–1074 (congregating and comparing the main characteristics of both cultures of face and cultures of dignity and how such a tandem impacts the unfolding of a conflict in United States of America and Japan, respectively). 110 T. Hamamura/Z. Meijer/S. Heine/K. Kamaya/I. Hori, “Approach-avoidance motivation and information processing: A cross-cultural analysis”, Personality and Social Psychology Bulletin, 35 (2009): 454–462 (providing an overview of cultures of face and cultures of dignity). 111 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 112 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 113 T. Hamamura/S. Heine, “The role of self-criticism in self-improvement and face maintenance among Japanese”, E. C. Chang (Ed.), Self-criticism and self-enhancement: Theory, research, and clinical implications, (2008): 105–122 (noting the pivotal role of self-criticism and self-improvement in Asian cultures, especially Japanese). 114 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 115 J.H.-Y. Fu/M. W. Morris/S.-L. Lee/M.-C Chao, C. -Y. Chiu/Y.Y. Hong, “Epistemic motives and cultural conformity: Need for closure, culture, and context as determinants of conflict judgments”, Journal of Personality and Social Psychology, (2007): 191–207. 106

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the social harmony in which a culture of face sits. Conflict mars (and foremost saps) social cooperation. The very existence of a conflict shows (to a greater extent) overt disrespect for the social hierarchy, which is not by all means to be disregarded in cultures of face. Conflict knee-caps (often hampers) a future relationship between the disputants therefore creating social irritants in cultures of face. (One of the) trademarks of a culture of face is its cultural tightness (as opposed to cultural looseness, a centrepiece of cultures of dignity).116 5. In cultures of face, there is a holy trinity not to be for forsaken, much less downplayed: the deemed 3 H’s. What do the 3 H´s stand for? Hierarchy, humility, and harmony.117 The nub of a culture of face is not amenable to be grasped devoid of, and detached from, a detailed attention to the foregoing pillars. No culture of face can be fully functional without the mightiness (and immovability) of such foundational pillars. If one mars the equilibrium in which such pillars rest upon, its social harmony is to be sapped in the process. 6. Hierarchy, humility, and harmony pillars resonate with, and are the encapsulation of, the assertion according to which individuals (narrowed down to their smallest expression) are supposed to display unquenchable respect to, and for, social hierarchy. «They are supposed to display humility and not overreach on status claims (lest they learn a painful and humiliating lesson about how much status others are willing to accord them)».118 Harmony is to be pursued «relentlessly». Henceforth (from the very minute they get accepted in a given social circle), «they are to pursue, or at least not disturb, the harmony of the system».119 If the fundamental tenets of this culture of face are besmirched (or disrupted), a draconian punishment is to be (must be) inflicted upon the wrongdoer: shame. «Shame is the punishment for bad behaviour in a system of face. Those who do not have enough concern for their face and the good opinion of others will behave selfishly or inappropriately».120 7. It gets worse and worse for cultures of face’s wrongdoers: «They may also be boorish and not sensitive enough to fulfil their particularistic obligations to peers, subordinates, superiors, or others to whom they owe loyalty. Someone not concerned with face will be insensitive to its loss».121 In a nutshell, the wrongdoers may become social pariahs over time. And «such people cannot be shamed or are shameless».122

116

M.J. Gelfand/L.H. Nishii/J. Raver, “On the nature and importance of cultural tightnesslooseness”, Journal of Applied Psychology, 91 (2006): 1225–1244 (on the difference between cultural tightness and cultural looseness). 117 Angela K.-Y. Leung/Dov Cohen, “Within-and between- culture variation: Individual differences and the cultural logics of honor, face and dignity cultures”, cit.: 507–526. 118 Id. 119 Id. 120 Id. 121 Id. 122 Id.

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8. Jurisdictions like China, Japan, South Korea, Singapore, Malaysia, Indonesia, and regions like Hong Kong, SAR, Macau, SAR and Taiwan stand amongst cultures of face. And this finding has a direct and significant impact on the design of mediation settings, especially from the voice, a key component of mediation, point of view, as further shown below.

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 1. As hinted above, equality123 and individuality amount to foundational pillars of cultures of dignity. So do party autonomy (in arbitration) and self-determination (in mediation). 2. There has been a massive outpouring of social cleavages124 in cultures of dignity, which tend to unleash hidden social tensions within the remit a given country or, at a shallowest level, a given community. The painstaking difficulty to find «common ground to get things done, and find enough mutual understanding to co-exist with some appreciation for our human frailties, needs, and common destinies»125 poses sizeable, and quasi-insurmountable, challenges to cultures of dignity. 3. Whereas self-determination and party autonomy in cultures of face (in which the individual is a particle of dust often swallowed by the mightiness of the collective) are not placed at the same level as in cultures of dignity (in which the individual is to be glorified, hallowed and lionised) and cultures of honour (in which the abhorrent issue of party autonomy tokenisation is a scourge), the challenge in this respect is to vanquish and disfranchise (ideally: trounce) lurking social demons (such as unbridled corruption, undeterred poverty, unfettered social exclusion, ebbed social capital, lack of personal empowerment, rampant violence and so forth). This is a challenge to exclude no country nor cultural background.126 4. Against the background of a much-needed mutual understanding amidst a convoluted and multicultural world, a cultural differentiation of voice is in dire need 123

Carrie Menkel-Meadow, “Why We Can´t “Just All Get Along”: Dysfunction in the Polity and Conflict Resolution and What We Might Do About It”, Journal of Dispute Resolution, 1 (5), (2018): 6 (noting that – in cultures of dignity – inequality, social cleavages and lack of tolerance loom large). 124 Sasha Abramsky, Jumping at Shadows: The Triumph of Fear and the End of the American Dream, New York City, Bold Type Books, (2017): 1–272 (signalling the triumph of fear amidst an outpouring of social cleavages in cultures of dignity, especially in the United States of America). 125 Carrie Menkel-Meadow, “Why We Can´t “Just All Get Along”: Dysfunction in the Polity and Conflict Resolution and What We Might Do About It”, cit.: 6 (noting that – in cultures of dignity – inequality, social cleavages and lack of tolerance draw near). 126 J.D. Vance, Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, New York, Harper, (2016) (portraying a micro-scenario of a culture in crisis in United States of America).

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of being created. The ways (levels and tonalities) through which voice is spoken varies neatly and greatly across cultural backgrounds though. In a bid to support this claim, the newly-crafted concept of cultural differentiation of voice is in dire need on being duly fleshed out.

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 1. As hinted above, cultural differentiation of voice has different levels and tonalities. Which begs for further refinements in this regard. Cultural differentiation of voice and the principle of differentiation in adaptive mediation are interlocking concepts, as further shown in Part 4 (Cross-Border and Cross-Cultural Dynamics of Mediation). 4.1.5.1

The Level Indifferent to Voice or a Silent Voice: Cultures of Honour

1. Cultural differentiation of voice has different layers as varies greatly across cultural backgrounds. In cultures of honour, one’s voice is nearly inaudible. No matter how loud one voices his/her concerns, no one seems to hear or willing to pay keen attention. Whenever one gains access to mediation settings his-her voice seems to be silenced (even buffered) by the magnitude (ubiquity and widespread presence) of unbridled social exclusion, undeterred poverty, and lack of personal empowerment. One’s voice in mediation settings is neither heard nor cherished. Which means that voice, in cultures of honour, is far from being heaped praised. Voice in cultures of honour therefore tend to be a silent voice. I have dubbed this as party autonomy tokenisation. This is level 1. The level indifferent to voice or a silent voice. 4.1.5.2

The Level that Conveys Group’s Voice or a Collective Voice: Cultures of Face

1. In cultures of face, voice has a spottily clear instrumental function. Members of cultures of face tend to voice their group’s concerns. Members of cultures of face seldom speak for themselves as their individuality is viewed a particle of dust which tends to be swallowed (buffered) by the mightiness of the collective. Even when they do speak for themselves, a keen attention to the needs of the group is maximized as opposed to the needs of the individual, which tend to be minimized or downplayed. In mediation settings, the tiny individual is the purveyor

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of the intra-group or extra-group concerns. The individual is the spokesperson of the collective (a given group formed by a thread of complex, interlaced and multilateral relationships). This is level 2. The level that conveys group´s voice or a collective voice. 4.1.5.3

The Level that Cares About Disputants’ Voice or an Individual Voice: Cultures of Dignity

1. In cultures of dignity, voice reach its full sonority. Thereby reaching both its full seniority and full height. No matter how low is one’s tone of voice, everyone is (at least relatively) willing to listen and pay keen close attention to one’s concerns. Hear and be heard forms an inalienable part of one´s human dignity. Voice is allotted a stellar position in cultures of dignity, which worships the individual and his eminent human dignity. At the level that cares about disputants´ voice or an individual voice, a flagship of cultures of dignity, voice tend to reach the higher echelons of human dignity, which is nothing but formulaic. 2. Against this background, one’s voice resonates with, and is the encapsulation of, self-empowerment, party autonomy and self-determination to the fullest extent of human dignity. In mediation settings, one´s voice tend to be heaped praised, cherished, and carefully heard. Lest mediators want to avoid the unbidden sobriquet of «indifferent to disputant´s voice», a keen attention should be given to disputants’ need to be heard in cultures of dignity. Being heard or not being heard is the difference between disputants ‘satisfaction or dissatisfaction with the administration of justice. This is the level 3. The level that cares about disputants´ voice or an individual voice. The Level that Cares About Disputants’ Voice or an Individual Voice and its Major Drawbacks: Over-Optimism, Overblown Concepts of Self, Inflated Egos, and Zero-Sum Mind-set in Cultural Dynamics of Mediation: Are the Facilitative, Narrative, Insight, and the Transformative Style of Mediation the Befitted Ones for Cultures of Dignity? Inflated, and foremost overblown, party autonomy,127 exaggerated, and foremost infatuated, sense of themselves128 (a disease of cultures of dignity), which has pushed

127

Elizabeth E. Bader, “The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle”, Pepperdine Dispute Resolution Law Journal 10 (2010): 183 (adducing to the issues of self and identity in dispute resolution). 128 Elisabeth E. Bader, “The Psychology and Neurobiology of Mediation”, Cardozo Journal of Conflict Resolution, 17 (2015): 363–364 (stating that «mediation was, I found, in large measure the process of helping parties, and often their attorneys, work through their initially exaggerated sense of themselves and the possibilities for settlement in order to arrive at a realistic resolution of the dispute») (italics added).

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mediation towards an adversarial corner129 (mirrored on a zero-sum mind-set),130 amounts to the level that cares about disputants´ voice drawbacks. Individuality (or the excess thereof) can spur inflated egos. Inflated egos and over-optimism are twin concepts in cultural dynamics of mediation.131 Especially in mediation settings.132 Over-optimism transmogrify (transforms) the mediator´s task into a «nightmare».133 From a procedural point of view. The best style of mediation under these circumstances is a facilitative (aimed at maintaining the communication channel open and fluid while funnelling away and brushing off any hindrances to hammer out a mediated settlement agreement); a transformative style of mediation134 (in an earnest attempt to empower disputants with a view to enable them to make good decisions while reshuffling their relationship); an insight style of mediation135 (aimed at grasping mutual understanding between the disputants); or a narrative136 style of mediation (with a view to simmer down the temperature of the quarrel while allowing each disputant to trot out their side of the story). Inflated egos and hyperbolized notions of self-determination beget adversary137 thinking and tend to obdurate behaviours138 in cultures of dignity. Worse yet: inflated egos and hyperbolized notions of self-determination breed heightened dissatisfaction

129

Elizabeth E. Bader, “The Psychology of Mediation: Issues of Self and Identity and the IDR Cycle”, cit., 183 ff (narrating the issues arisen from inflated egos and inflated self-worth in cultures of dignity like United States). 130 See: Jonathan R. Cohen, “A Genesis of Conflict: the Zero Sum Mindset”, Cardozo Journal of Conflict Resolution 17(4) (2016): 427-428. 131 Judith Resnik, “The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure”, University of Pennsylvania Law Review, 162, (2014): 1793 ff (argues that amicable and conciliatory means of solving disputes are «new private processes» that are not to be disregarded when it comes to oust adversarial mind-sets). 132 Harry L. Munsinger/Donald R. Philbin, “Why Can´t They Settle? The Psychology of Relational Disputes”, Cardozo Journal of Conflict Resolution 18 (2) (2017): 311 ff. 133 Harry L. Munsinger/Donald R. Philbin, “Why Can´t They Settle? The Psychology of Relational Disputes”, cit.: 311 ff. 134 Robert A. Baruch/Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict, Revised edition (25th of October of 2004), San Francisco, Jossey-Bass, (2004): 1-304. 135 See: Part 1, Chap. 1, point 1.2.4. (on Lonergan´s insight theory and Mezirow´s transformational learning theory underpinning the insight style of mediation). 136 See: Part 1, Chap. 1, point 1.2.3. of this book (on the narrative style of mediation, which draws on the Critical Legal Studies school of thought). 137 Carrie Menkel-Meadow, “Deliberative Democracy and Conflict Resolution: Two Theories and Practices of Participation in the Polity”, ABA Dispute Resolution Magazine, (2006): 18–19 (bemoaning the adversary-turn on dispute resolution in an overarching sense). 138 Carrie Menkel-Meadow, “The trouble with the Adversary System in a Post-Modern, Multicultural world”, William and Mary Law Review, 38 (1996): 5 (noting how increasingly bellicose and belligerent a culture of dignity – United States of America – is becoming).

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with the administration of justice while giving rise to a ghastly sporting theory of justice.139 Something that must be cast off from cultural dynamics of mediation.140 Lest cultures of dignity want to shun a watered-down (therefore a shoddy and below-standard) version of cultural dynamics of mediation (which dovetails the worst characteristics of litigation with scattered features of mediation), the essence of the principle of self-determination and the sanctity of party autonomy141 must not be tampered with. Party Control and the Four Pillars of Procedural Justice: Why Do «Voice», «Trustworthy Consideration», «Neutral Forum That Treats People Even-Handedly», and «Feel Heard» in Mediation Matter so Much to Members of Cultures of Dignity? 1. In social-psychology, the term «procedural justice»142 encompasses both a degree of party control and a degree of participation in mediation settings. Procedural justice is premised on four pillars: (i) «voice», as an opportunity for disputants to express143 their opinions, insights about their case, and procedural concerns144 ; (ii) «trustworthy consideration», as a procedural feature that gives laypeople the impression that their voice has been keenly heard145 by the decision-maker146 (arbitrator or judge) or a neutral (mediator)147 ; (iii) a neutral forum that treats all 139

Roscoe Pound, http://blog.legalsolutions.thomsonreuters.com/government/can-still-learn-ros coe-pound-just-drives-public dissatisfaction-administration-justice/ (access: 5.3.2018). 140 Stephen Goldberg/Frank Sander/Nancy Rogers/Sarah Cole, Dispute Resolution: Negotiation, Mediation, Arbitration, and Other Processes, 6th edition, Aspen, Aspen Publishers, (2012): 8–488 (emphasizing that one the of the trademarks of mediation is peacekeeping and simmering down the temperature of the dispute). 141 Yesnah D. Rampall/Ronán Feehily, “The Sanctity of Party Autonomy and the Powers of Arbitrators to Determine the Applicable Law: The Quest for an Arbitral Equilibrium”, Harvard Negotiation Law Review, 23 (2018): 354 (alluding to the party autonomy as a guiding principle of dispute resolution in general and to whom the authorship of the expression «sanctity of party autonomy» is to be credited). 142 Nancy A. Welsh, “Do you Believe in Magic? Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation”, cit.,: 723–761. 143 E. Allan Lind/Tom R. Tyler, The Social Psychology of Procedural Justice, New York City, Springer US XII, (1988): 267 (211–212). 144 Nancy A. Welsh, “Do you Believe in Magic? Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation”, cit.: 723–761. 145 Tom R. Tyler, “Psychological Models of the Justice Motive: Antecedents of Distributive and Procedural Justice”, Journal of Personality & Social Psychology, 67 (1994): 850–858 (talking about the hopes that laypeople nurture as to having their voice heard and how that can be regarded as procedural justice in their eyes). 146 Robert J. MacCoun, “Voice, Control, and Belonging: The Double-Edge Sword of Procedural Fairness”, Annual Review of Law and Social Science, 1 (2005): 171–186 (noting that laypeople do care about procedural fairness even when they are informed that their voice will not influence the outcome of the dispute). 147 Nancy A. Welsh, “Do you Believe in Magic? Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation”, cit.,: 723–761.

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disputants even-handedly148 and in an equal-footed manner and in which there is no room for biases whatsoever149 ; (iv) people feel that they have been fairly (keenly) heard150 and respectfully treated.151 2. Which is not by all means befuddling in cultures of dignity: «If people believe that they were treated fairly in a decision-making or dispute resolution procedure (i.e. the process was procedurally just or procedurally fair) they are more likely to (1) perceive that the substantive outcome is fair152 —even when it is adverse to them; (2) comply with the outcome153 ; and (3) perceive that the sponsoring institution is legitimate».154 3. The findings arising out such full-fledged and comprehensive body of empirical evidence are consistent with the conclusions brought forth in this very Part 3. In cultures of dignity, disputants are very fond of having (and exerting) control on both the mediation process and the outcome of dispute reached therein. Disputants brand themselves as captains of their own procedural fate. The more party control is taken away from them, the lessened (thus lower) will be the procedural justice in their very eyes. 4. Party control is premised on an enhanced sense of individualism (one of the linchpins of cultures of dignity) as opposed to cultures of face in which a heightened sense of collectivism (one of the bedrocks of cultures of face) tends to proscribe a direct party control. Thus shifting towards an indirect group control. The Degrees of Party Control of the Process and the Functional Dimension of Voice as the Capstone of the Level That Cares About Disputants’ Voice or an Individual Voice: Its Impact on the Preferable Approach to Mediation (or Style of Mediation) in Cultures of Dignity 1. Party control is one of the bedrocks of cultural dynamics of mediation in cultures of dignity. Party control allows disputants to control (or at least trying to exert

148

Id. Tom R. Tyler, “Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority”, DePaul Law Review, 56 (2007): 661–664 (arguing that «transparency and openness’s foster the belief that decision-making procedures are neutral»). 150 Edgar Allan Lind et alii, “In the Eye of the Beholder: Tort Litigants ‘Evaluations of Their Experiences in the Civil Justice System”, Law and Society Review, 24 (1990): 953–958 (noting that fair treatment yields procedural fairness). 151 Tom R. Tyler, “The Psychology of Procedural Justice: A Test of the Group-Value Model”, Journal of Personality and Social Psychology, 57 (1989): 830–831 (arguing that respect influences the perceptions of procedural justice). 152 John Thibaut/Laurens Walker, Procedural Justice: A Psychological Analysis, Hillsdale, N.J.: Lawrence Erlbaum Associates, (1975): 1–150 (on the paramount importance of procedural justice in dispute resolution). 153 Edgar Allan Lind/Tom R. Tyler, “Procedure and Outcome Effects on Reactions to Adjudicated Resolution of Conflicts of Interest”, cit.: 643–646. 154 Nancy A. Welsh, “Do you Believe in Magic? Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation”, cit.,: 723–761 (725 ff). 149

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some influence on155 ) the outcome of the dispute.156 Most of times is not about that though. It is about exerting some sort of control on the process157 and feeling that the disputants’ voice158 has (have) been heard throughout the mediation settings instead. Which entails determining the preferable style of, or the preferable approach to, mediation. I have deemed this the functional dimension of voice, which is the capstone of the level that cares about disputants´ voice or an individual voice in cultures of dignity. 2. The functional dimension of voice allows disputants to single out the dispute resolution mechanism that awards them both greater control of the process and greater control of the outcome of the dispute. I have dubbed this the degrees of party control of the process. In so doing, they can take the «captain of my procedural fate» motto to a whole new level: choosing the style or approach to mediation and the limits that the mediator cannot (and must not) cross. Such as infringing their self-determination by forcing their hand to settle. The functional dimension of voice spurns (and proscribes) coercion in mediation altogether. 3. The degrees of control of the process allow the disputants to choose a bespoke dispute resolution mechanism suitably tailored to the degree of control of the process that they want to exert in a given procedural moment. Be that litigation159 (where the degree of control of both the process and the outcome is low). Be that arbitration160 (where the degree of control of both the process and the outcome

155

Nancy A. Welsh, “Making Deals in Court-Connected Mediation: What´s Justice Got to Do with it?”, Washington University Law Quarterly, 79 (2001): 787–825-827 (reporting that «disputants value the opportunity for voice because this provides them with the opportunity to influence the decision maker and indirectly the final outcome»). 156 Donna Shestowsky, “Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea”, Psychology Public Psychology and Law, 10 (2004): 211 ff and passim (noting that, in cultures of dignity, disputants award value to the opportunity to control the presentation of evidence). 157 Donald E. Conlon, “Some Tests of the Self-Interest and Group-Value Models of Procedural Justice: Evidence from an Organizational Appeal Procedure”, Academy of Management, 36 (1993): 1108–1110 (premised on empirical research, arguing that «people desire control over procedures»). 158 Tom R. Tyler et alii, “Influence of Voice on Satisfaction with Leaders: Exploring the Meaning of Process Control”, Journal of Personality and Social Psychology, 48 (1985): 72–80 (noting however that the most important dimension of voice is that «increases satisfaction, irrespective of whether it is linked to decision control»). 159 John Thibaut et alii, “Procedural Justice as Fairness”, Stanford Law Review, 26 (1974): 1287– 1288 (these authors have noted that, back in 1974, and prior the emergence of groundswell of courtconnected dispute resolution programs pursuant the much-acclaimed Pound Conference in 1976, disputants were of the opinion that the adversary system was «the most preferable and the fairest mode of dispute resolution»). Which is consistent with the exceedingly high level of individualism that features the great bulk of western jurisdictions – the whopping majority of which are members of cultures of dignity. See: Part 3 (Cultural Dynamics of Mediation), Chap. 4, point 4.3.1. (on the most prominent features of cultures of dignity). 160 Tom R. Tyler/Edgar Allan Lind/Yuen J. Huo, “Cultural values and Authority Relations: The Psychology of Conflict Resolution Across Cultures”, Psychology Public Policy and Law, 6 (2000): 1138–1148 (noting that «arbitration gives authorities the power to impose solutions»).

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is mild). Be that mediation161 (where the degree of control of both the process and the outcome162 is high163 ). Or conciliation164 (where the degree of control of both the process and the outcome is exceedingly high). Be that in negotiation165 (where the degree of control both the process and the outcome are maximum166 ). The Impact of the Functional Dimension of Voice on the Preferable Approach to Mediation (or Style of Mediation) in Cultures of Dignity: The Facilitative, Narrative, Insight, or Transformative Style of Mediation 1. Subsequently (i.e.: after the disputants had chosen their preferred dispute resolution mechanism), the functional dimension of voice is to allow disputants to choose (in the case of mediation) a style or approach to mediation functionally appropriate not only to their culture background, but also to their individuality and procedural needs. 2. To the extent that the cultural background in which cultures of dignity rest upon (displaying high values of individualism and low levels of power distance167 )

161

Id. (noting that «mediation gives authorities the power to suggest solutions»). Marie A. Failinger, “Parallel Justice: Creating Causes of Action for Mandatory Mediation”, University of Michigan Journal of Law Reform, 47 (2014): 360–391 (reporting that court-connection dispute resolution programs, such as mandatory mediation, confers to disputants a greater level of control of the both the outcome and the process). 163 Jacqueline Nolan-Haley, “Mediation: The “New Arbitration”, Harvard Negotiation Law Review, 17 (2012): 61–68 (reporting that, in light of the fundamental principal of self-determination and greater party control, mediation grants to parties a greater and higher control on both the process and the outcome of the process). 164 Tom R. Tyler, “The Psychology of Procedural Justice: A Test of the Group-Value Model”, Journal of Personality and Social Psychology, 57 (1989): 830 (reporting that in any procedure «several non-control issues – the neutrality of the decision-making procedure, trust in the 3rd party, and the information the experience communicates about social standing – influence both procedural preferences and judgments of procedural justice»). 165 Stephanie Smith/Janet Martinez, “An Analytical Framework for Dispute Systems Design”, Harvard Negotiation Law Review, 14 (2009): 123–127 (noting that in «negotiation…the parties retain control over both the process and outcome»). 166 Donna Shestowsky, “How Litigants Evaluate the Characteristics of Legal Procedures: A Multicourt Empirical Study”, University of California Davis Law Review, 49 (3) (2016): 798 ff (adhering to the procedural fairness model and to the levels of party control in dispute resolution). 167 Geert Hofstede, Cultures and organizations: Software of the mind, New York, NY: McGraw Hill, (1991): passim. Geert Hofstede, Culture´s consequences: Comparing values, behaviours, institutions, and organisations across nations, 2nd edition, Thousand Oaks, CA: Sage, (2001): passim. G.H. Hofstede/M. H. Bond, “The Confucius connection: From cultural roots to economic growth”, Organizational Dynamics, 16, (1988): 5–20 and passim. 162

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differs from cultures of face and cultures of honour, a facilitative,168 narrative,169 insight170 or a transformative171 approach to mediation would be suitably tailored to give room to disputants fully exert their self-determination and party autonomy. Which is nothing but completely expectable and formulaic: mediators and disputants are justice´s service users. Not competitors vying for a spot at the limelight of cultural dynamics of mediation. Any approach to mediation detached from, and decoupled from, this assertion is prone to the emergence of legal irritants172 on the remit of mediation.

4.2 Conclusion §§ 1. The intrinsic linkage between the first tier of the four-tiered model of mediation (Social Dynamics of Mediation) and the second tier of the four-tiered model of mediation (Cultural Dynamics of Mediation) aims to draw (policymakers´ and lawmakers´) attention to the not-to-be-forgotten interplay between law and social reality. To which I have extensively alluded at the Introduction of this book. §§ 2. Building on my newly-crafted concept of cultural differentiation of voice, voice (a bedrock of cultural dynamics of mediation) has different levels and tonalities of which the stellar mediator (whom is to embrace the emic-adaptive concept of culture, as further shown in Part 5, devoted to Cross-Border and Cross-Cultural Dynamics of Mediation) must never lose sight of. §§ 3. Cultural differentiation of voice comprises: (i) the level that cares about the disputants ‘voice or an individual voice in cultures of dignity (where the tonality or degree of voice is maximum); (ii) the level that conveys group’s voice or a collective voice in cultures of face (where the tonality or degree of voice is medium); and (iii) the level indifferent to disputants ‘voice or a silent voice (where the tonality or degree of voice is minimum). §§ 4. Against the backdrop of which the disputants are free to single out: (i) the style of mediation considering their individuality, cultural background and (ii) the intricacies of their dispute (ranging from the degree of contentiousness to the high or low «temperature» of their quarrel). 168

See: Introduction: Part 1, Chap. 1, point 1.2.5.1.1. of this book (on Riskin´s grid of facilitative style of mediation). 169 See: Part 1, Chap. 1, point 1.2.3. of this book (on the narrative style of mediation, which draws on the Critical Legal Studies school of thought). 170 See: Part 1, Chap. 1, point 1.2.4. of this book (on Lonergan´s insight theory and Mezirow´s transformational learning theory underpinning the insight style of mediation). 171 See: Part 1, Chap. 1, point 1.2.2. of this book (on the transformative style of mediation, which draws on the relational theories of feminism movement). 172 Gunther Teubner, “Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences”, The Modern Law Review, 61 (1998): 11–32 (using this metaphor in the legal transplant realm, but transferable to the remit of mediation).

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§§ 5. The style of mediation befitted to cultures of dignity ranges from facilitative, insight, narrative, or transformative in view of the exceedingly high levels of individualism (Hofstede’s cultural dimension). §§ 6. The style of mediation suitably tailored to cultures of face is the directive one in view of the exceedingly high levels of collectivism (Hofstede’s cultural dimension) and exceedingly high levels of power distance (Hofstede´s cultural dimension). §§ 7. The bespoke style of mediation to cultures of honour is the incorporative one in view of the exceedingly low levels of personal empowerment, scant social capital, and scarce party autonomy.

Part IV

The Third Tier of the Four-Tiered Model of Mediation: Legal Dynamics of Mediation

Chapter 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 1. Amongst one of the Legal Dynamics of Mediation’s sweeping goals lies, underpinned by brawny and sturdy philosophical and sociological foundations, the thrust to lay the foundations upon which stands four newly-crafted concepts. The first of which is formal access to justice (and, within which core, the equal access to procedural action and the sought-after procedural appearance before others). The second of which is the best procedural outcome from a cultural standpoint. The fourth of which is the effective access to justice as an extension of the Rule of Law, which is to wrap up this four-step access to justice framework. 2. Hardly any surprise stems from the fact that the sizzling hot topic of mediator misconduct will be brought to fore with a view to set forth a new two-pronged model of fairness-abiding mediator and a new three-pronged test of mediator misconduct. Brush aside (and stamp out) a poorly wrought model of mediator misconduct, which rests upon straggled and patchy contract law principles and (often wrapped in opaqueness) fiduciary duties to which the issue of mediator misconduct has been tethered to so far, stands also as an overriding goal.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_5

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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 5.1.1.1

(A Voyage) from Hannah Arendt’s Theory of Loneliness to a Bird’s Eye View on Roscoe Pound’s Dissatisfaction with the Administration of Justice (Notwithstanding) Jürgen Habermas’s Theory of the Communication Action in the Lifeworld

1. Procedural appearance before others stands as one the procedural centerpieces of the third tier of my Four-Tiered Model of Mediation. Procedural loneliness1 (which draws on Hannah Arendt’s concept of loneliness)2 is the polar opposite of procedural appearance.3 Formal access to justice aims to maximize the procedural appearance before others and minimize (if not vanquish and ideally trounce altogether) the procedural loneliness. 2. As asserted by Roscoe Pound, people aspire to (clutch) access (to) justice to solve their problems.4 In addition to that, disputants crave to be heard5 and to feel heard6 . Lest the system of justice endeavours to filter out Pound’s dispiriting view on the dissatisfaction with the administration of the justice,7 an equal access to procedural action8 must be bestowed upon disputants. Which would amount to formal access to justice. If that fails to happen for some reason, the disputants 1

See Sarah Drew Lucas, “The primacy of narrative agency: Re-reading Seyla Benhabib on narrativity”, Feminist Theory, 19 (2), (2018): 123–143 (on the concept of narrative agency). 2 Hannah Arendt, The Origins of Totalitarianism, Orlando, Harcourt Brace and Company, (1976): 476 ff (parsing the notion of loneliness and its opposite in the common world by stating that «only because we have common sense, that is only because not one man, but men in the plural inhabit the earth can we trust our immediate sensual experience»). 3 T. Dumm, Loneliness as a way of life, Cambridge, Harvard University Press, (2010): passim (sketching out the foundations of the concept of loneliness—especially in cultures of dignity—as a gruesome way of life). 4 Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice Presented at the annual convention of the American Bar Association in 1906, available at: https://law.unl.edu/ RoscoePound.pdf (access: 5.3.2019). 5 J. Stauffer, Ethical loneliness: The injustice of not being heard, New York, Columbia University Press, (2015): 1–88 (on the necessity of being heard). 6 In French doctrine, Jean-Paul Sartre, Being and nothingness, New York, Editions Gallimard, (1984) (a seminal book that kicked-off the era of philosophic existentialism and the importance of the self in cultures of dignity like France and United States of America). 7 Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice Presented at the annual convention of the American Bar Association in 1906, available at: https://law.unl.edu/ RoscoePound.pdf (access: 5.3.2019). 8 Sarah Drew Lucas, “Loneliness and appearance: Toward a concept of ontological agency”, European Journal of Philosophy, (2019): 1–14 (on the seminal concept of equal access to action from which my concept of equal access to procedural action draws on).

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will be pushed over the edge of ethical loneliness9 , .10 Worse yet: pushed over the edge of procedural loneliness. 3. Bearing this backdrop in mind, language and the appearance before others11 are crucially important in Legal Dynamics of Mediation. Procedural appearance before others in mediation settings amounts to creating a bevy of adroit conditions to bestow upon disputants the opportunity to procedurally appear before others and, in so doing, voice their needs and procedural concerns and to build rapport therein. Be that in cultures of face. Be that in cultures of honor. Or in cultures of dignity. Unsurprisingly, philosophers talk about an intrinsic linkage between self-determination, autonomy and law in this regard.12 And rightly so. 4. Mediation settings (just like any other space of communication13 ) are the apposite stage in which the disputants can (and should) voice their procedural concerns. It is also the befitted place to fertilize a procedural hope that every time the disputant leaves behind the cloak of loneliness and ascends to the realm of appearance before others his issues will be thoroughly solved in (and within) the system of justice. Every time that procedural hope fails to be fulfilled, the disputants will be pushed further back to the corner of procedural loneliness (as a present or future refusal to procedurally appear before others aimed at bringing forth one’s case). For the same reason, the disputant’s procedural appearance before others in the lifeworld (as a yearning hope to appear before others aimed at being bestowed upon the opportunity to solve his quarrels in a swift and streamlined manner) will be quashed in the process. 5. Against this backdrop, procedural loneliness and abridged (even warped) communication action14 stand as interlocking concepts. The more procedural loneliness, the less communication action between estranged disputants will be in the lifeworld. Here lies the connection between equal access to procedural 9

J. Stauffer, Ethical loneliness: The injustice of not being heard, New York, Columbia University Press, (2015): 1–88 (alluding to the gruesome phenomenon of ethical loneliness associated to the injustice of not being heard—which is paramount in dispute resolution. Be that in cultures of face, cultures of honour, and cultures of dignity). 10 R. H. King, “Hannah Arendt and American loneliness”, Sociology, 50, (2013): 36–40 (drawing upon Hannah Arendt’s notion of loneliness). 11 M. Shuster, “Language and loneliness: Arendt, Cavell, and modernity”, International Journal of Philosophical Studies, 20 (4) (2012): 473–497 (bringing forward the basis to the interplay between language and loneliness). 12 J. Nedelsksy, Law’s relations: A relational theory of self, autonomy, and law, Oxford, Oxford University Press, (2012): passim (parsing the relationship between the self, autonomy, and law—of paramount importance in cultures of dignity). 13 Hannah Arendt, Men in dark times, New York, Harcourt Brace and Company, (1995): 13 ff (whilst the concept of space is not clear in Hannah Arendt’s philosophy, the meaningful space of communication between human beings is to be held in a public space. See also: Hannah Arendt, The Jewish Writings, J. Kohn/R.H. Feldman (Eds.), New York, Schocken Books, (2007): passim (echoing the same views while showing concerns about the overall impoverishment of the world, which begets further loneliness). 14 In German language, Jürgen Habermas, Theorie des kommunikativen Handelns, Band 2: Zur Kritik der funktionalistischen Vernunft, (2) 1981: 8–368.

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action (as the linchpin of formal access to justice) and the Kantian moral concept of law (the bedrock of effective access to justice as an extension of Rule of Law). 6. Bestowing upon disputants equal access to procedural action will equal to a great leap forward in creating the opportunity to make things right (ameliorating, repairing, amending, or maintaining disputants’ relationship) and will be a plus to the overall credibility and functionality of a given system of justice. Hardly any surprise stems from the fact that both long-term harmony-equilibrium and wealth procedural maximization, two flagships of my Four-Tiered Model of Mediation, are of paramount importance (also) in this regard.

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 1. Equal access to procedural action (which leverages on an agonistic15 view of an emancipatory force that seeks to fizzle out and stamp down unlawful domination, which begets both social injustice and social imbalances16 ) occurs against the background of a complex social world17 where conflict is rife. No surprise springs from the fact that my newly-crafted concept of formal access to justice (premised on the yearning hope to bestow upon disputants an equal access to procedural action) is tightly interlocked to incorporative mediation, which is newly-crafted style of mediation that seeks to cast off procedural imbalances, bargaining imbalances and power imbalances while protecting the weakest disputant in the room. 2. Disputants (a cohort of selves18 against the background of the chequered and harlequin mosaic of mediation) must be placed in an equal-footed position as they formally access the judicial system. No other way is admissible. In legal dynamics of mediation (as in any other stage of dispute resolution) the thrust to procedurally appear before others in a lifeworld19 must be undeterred as «it is an 15

B. Honig, “Toward an agonistic feminism: Hannah Arendt and the politics of identity”, B. Honig (Ed.), Feminist interpretations of Hannah Arendt, University Park, Pennsylvania, Penn State Press, (1995): 8 ff. 16 Sarah Drew Lucas, “Loneliness and appearance: Toward a concept of ontological agency”, European Journal of Philosophy, (2019): 1–14. 17 Id. at 6 ff. 18 Sarah Drew Lucas, “The primacy of narrative agency: Re-reading Seyla Benhabib on narrativity”, Feminist Theory, 19 (2), (2018): 123–143. 19 Sarah Drew Lucas, “Loneliness and appearance: Toward a concept of ontological agency”, cit.: 1–14 (6 ff).

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initiative from which no human being can refrain and still be human».20 In this respect, it is hardly bewildering that equal access to procedural action and the theory of agency are intrinsically linked. As agency it is not only the capacity «to align action and intention»,21 but the «constant capacity to appear as a unique self in the world».22 3. Against this background, equal access to procedural action is therefore tightly interlocked to formal access to justice. Both draw on Hannah Arendt’s concept of loneliness and Sarah Drew Lucas’s concept of ontological agency. 4. As such, the more impoverished is the public sphere23 (e.g. judicial system, society, community), the more hurdles there will be to both equal access to procedural action and to formal access to justice. Procedural loneliness, a gruesome phenomenon in the remit of legal dynamics of mediation, will not lag far behind. Here is why: whenever the disputants fail to take successfully the first step into the judicial system building (formal access to justice), the spectre of procedural loneliness will lurk around as to haunt their yearn to be heard and understood.24 Which is why procedural appearance before others is so paramount in legal dynamics of mediation. 5. Procedural appearance before others, a strand of formal access to justice, happens when disputants have already disrobed the cloak of procedural loneliness.25 Disputants’ procedural appearance encompasses two procedural hopes. On one hand, the yearning hope to gain access the judicial system and being fairly treated (ranging from cultures of face, cultures of honour, to cultures of dignity).26 On the other hand, procedural appearance before others is interwoven with the yearning hope of being bestowed upon the opportunity to have a positive legal-real-feel (a good impression about) a given system of justice. Against the background of which the disputants are to nourish the yearning hope to clutch

20

Hannah Arendt, The human condition, cit., 176. Sarah Drew Lucas, “Loneliness and appearance: Toward a concept of ontological agency”, cit.: 1–14 (6 ff). 22 Id. 23 Id. at 1-14 (noting that «wherever the public sphere is impoverished, wherever appearance is compromised by these marginal states, loneliness threatens to spread»). 24 Hannah Arendt, The Origins of Totalitarianism, Orlando, Harcourt Brace and Company, (1976): 477 (arguing that in –procedural—loneliness, one «loses trust in himself as the partner of his thoughts and that elementary confidence in the world which is necessary to make experiences at all»). 25 Jean-Paul Sartre, Being and nothingness, New York, Editions Gallimard, (1984) (noting that capitulating to loneliness is the ultimate sign of bad faith. Denying the appearance of the disputants in the judicial system is quashing one’s uniqueness). 26 Id. at 6 ff. See: Sarah Drew Lucas, “Loneliness and appearance: Toward a concept of ontological agency”, cit.: 1–14 (6 ff) (noting that «without the feeling that one is listened to and recognized, one is less capable to even attempting to express one’s thoughts, feelings, opinions, or judgements»). 21

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effective access to justice on the heels of a dispute resolution mechanism suitably tailored27 to their procedural28 needs,29 individuality and cultural background. 6. Bearing this assertion in mind, formal access to justice has two cumulative dimensions. On one hand, formal access to justice focuses primarily on the dimension of the individual (disputant), that is to be afforded a positive legal-real-feel (both as he/she accesses the system of justice). On the other hand, formal access to justice focuses on the dimension of the system of justice, which must be prepared to bestow upon disputants a customized solution to their cases while striving to allay (and ideally quash) any procedural imbalances, a central claim of incorporative mediation. Thereby yielding both functional credibility in a given system of justice and a sought-after wealth procedural maximization (mirrored on manifold gains in time, money and functional credibility of a given system of administration of justice). Hardly any surprise springs from the fact that the foregoing two dimensions are also two pair of hopes. 7. Such pair of hopes are of paramount importance (but not only) in cultures of honour where the social inequalities are extant and rife. Whenever that happens, the stellar mediator (as opposed to a watered-down version of one) should resort to an incorporative style of mediation. In sum, incorporative mediation. This style of mediation is crucially important as to scrub out the (to-be-abhorred) zero-sum

27 Frank E.A. Sander, “Varieties of Dispute Processing”, Pound Conference: Perspectives on Justice in the Future, cit.: 1-8 (bringing forth, as shown in Social Dynamics of Mediation, the hackneyed idea of multi-door courthouse, which would nonetheless constitute a turning point in the history of dispute resolution from the 1976 onward according to which disputants were to have many doors to choose from). As previously hinted at both Part 2 and at the second tier of my four-tiered model of mediation, a multi-door courthouse idea has been informally practiced in Anglo-Saxon England (XI century). Considering this historical account, I cautiously (yet respectfully) would say that the multi-door courthouse idea is all but new. 28 Carrie Menkel-Meadow, “Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal,” Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads (2013): 418–428 (referring to the challenges of dispute resolution in the United States of America). 29 Thomas J. Stipanowich, “Living the Dream of ADR: Reflection on Four Decades of the Quiet Revolution in Dispute Resolution”, Cardozo Journal of Conflict Resolution 18 (3) (2017): 515 (arguing adamantly that «similar themes were sounded more expansively by Professor Frank Sander in his seminal concept paper Varieties of Dispute Processing, which outlined a proposal for making the public justice system more responsive to the different kinds of conflict which make their way to the courthouse. His dynamic vision was premised on a flexible tailoring of the process to the controversy aimed at better resolutions of existing disputes, as well as grievances that were not then being aired for lack of an appropriate mechanism. He conceived of a “multi-door courthouse” in which disputes would be allocated to various dispute resolution mechanisms- court adjudication, arbitration, mediation, negotiation, and other processes on the basis of rational criteria, such as the nature of the dispute, the relationship between disputing parties, the amount in dispute» and so forth) (italics added).

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mind-set30 from legal dynamics of mediation. As hinted above, incorporative mediation stands as a new style of mediation which allots to the stellar mediation the duty to fend off attacks to the weakest disputant in the room. 8. Which brings me to the effective access to justice31 as an extension of the Rule of Law, which is deeply woven into the fabric of the Kantian moral concept of law32 championed by the polymath German philosopher Immanuel Kant.

5.1.3 The (Philosophical and) Theoretical Underpinnings of Effective Access to Justice as an Extension of Rule of Law 5.1.3.1

Immanuel Kant’s Moral Concept of Law

1. Kant’s moral concept of law amounts to doing the right thing33 for the right reasons.34 It boils down to a categorical moral imperative that is to be directed at both citizens (purveyors of private interests) and the judicial system (the cradle of general interests). To the extent that the judicial system is to demand citizens’ respect for a compilation of laws enacted in a given jurisdiction, the former should be at the forefront of the thrust to augment the levels of effective access to justice. An effective access to justice which must be both responsive to both

30

Jonathan R. Cohen, “A Genesis of Conflict: the Zero Sum Mindset”, Cardozo Journal of Conflict Resolution 17(4) (2016): 427–428 («while seeing the world as zero-sum does not make conflict inevitable, it does make it more likely») (italics added). 31 Gladys Kessler/Linda J. Finkelstein, “The evolution of a Multi-Door Courthouse”, Catholic University Law Review, 37 (1988): 577–578 (positing that «litigants might be able to resolve disputes with less expense, more satisfaction, and less acrimony if alternatives were available to the adversarial process (…) Certain cases would be processed more quickly, providing judges with more time to devote to the cases that require their attention and intervention») (italics added). 32 The degree of connection between law and morality differs across countries. See: Neil McCormick, in: H. L. Hart, Palo Alto, California, Stanford University Press, (2008): 207 (arguing that «some legal systems incorporate some moral criteria. Others may incorporate other moral criteria, yet others no moral criteria at all»). 33 Immanuel Kant, Lectures and Drafts on Political Philosophy, Frederick Rauscher/Kenneth R. Westphal (Editors), Cambridge, Cambridge University Press, (2016): 73–180 (a series of Kant’s lectures based upon notes taken by the Gottfried Feyerabend in which the former has set forth the seminal notion of Right). 34 Immanuel Kant, Metaphysics of Moral, Cambridge Texts in the History of Philosophy, 2nd edition (31st of May of 1996), Cambridge, Cambridge University Press, (1996): passim (The Metaphysics of Morals is arguably Kant’s major work in applied moral philosophy in which he deals with the fundamental tenets of rights and of virtues. It comprises two thematic hemispheres: the “Doctrine of Right,” in which he deals with the bevy of rights that laypeople have or can acquire, and the “Doctrine of Virtue,” which deals with the universe of virtues that laypeople must acquire with a view to live a righteous life).

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disputants’ individuality35 and their cultural backgrounds as to yield heightened trust and trustworthiness on a given system of justice. The more a given system of administration of justice (which is always deeply embedded in given social context36 ) is responsive to both, the more room will be made available to both the best procedural choice from a cultural standpoint and to the best procedural outcome from a cultural standpoint. And to wealth procedural maximization. 2. Kant’s moral concept of law37 is paramount to the construction of my newlycrafted concept of effective access to justice as an extension of Rule of Law.38 Building on Kant’s Doctrine of Right, the authority of law is also premised on general interests such as security and welfare.39 Which means that Kant’s moral concept of law is two-folded as aims to uphold both general interests and private interests. My concept of effective access to justice as an extension of Rule of Law seeks to dovetail both seamlessly. 3. On one hand, the concept of effective access to justice as an extension of Rule of Law aims to yield legal security and welfare. Both general interests. On the other 35

Harry L. Munsinger/Donald R. Philbin, “Why Can’t They Settle? The Psychology of Relational Disputes”, cit.: 311–315 (arguing that «intuitive shortcuts can mislead us when we are faced with a complicated decision, particularly when the stress and uncertainty of conflict cloud the process and limit our options»). 36 Professor H. L. Hart has raised awareness on the social context associated to a respective legal framework, as follows: «Many important distinctions, which are not immediately obvious, between types of social situation or relationships may best be thought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself often left unstated»; H. L. Hart, Concept of Law, 3rd edition, Clarendon Law Series, Oxford, Oxford University Press, (2012): 86 ff and passim (italics added). 37 Immanuel Kant, Metaphysics of Moral, cit., passim. 38 Lauded Canadian doctrine has shed some light about the concept of «sense of justice», which is not to be confounded with my concept effective access to justice as an extension of Rule of law. That doctrine stated that: «An emerging worldwide civil procedure justice reform trend takes the user’s point of view into account in order to promote access-to justice and support for the rule of law. In the Canadian context, the Quebec civil law province has taken the lead to renew its legal culture towards a participatory justice, rooted in fair-minded processes that encourage the persons involved to play an active role. In an effort to monitor such ambitions, carried by the civil procedure code reforms of 2003 and 2014, our paper offers an empirical evaluation through the lens of litigant’s “Sense of Access to Justice” (“SAJ”). Access-to-justice is a contemporary, international issue». See: Jean-François Roberge, “Sense of access to Justice as a framework for civil procedure justice reform: an empirical assessment of judicial settlement conferences in Quebec (Canada)”, Cardozo Journal of Conflict Resolution, 17(3) (2016): 323–4325; see also, Roderick A. MacDonald, Access to Justice in Canada Today: Scope, Scale and Ambitions, (2005): 8 ff.; Trevor C.W. Farrow, Civil Justice, Privatization, and Democracy, (2014): 9–18; Pascoe Pleasence, Nigel J. Balmer, Alexy Buck, Aoife O’Grady & Hazel Genn, “Multiple Justiciable Problems: Common Clusters and Their Social and Demographic Indicators”, Journal of Empirical Legal Studies, 301 (2004): 1–18; Pascoe Pleasence, Nigel J. Balmer & Rebecca L. Sandefur, Paths to Justice: A Past, Present and Future Roadmap, (2013), http://www.nuffieldfoundation.org/sites/default/files/files/PTJ%20Road map%20NUFFIELD%20Published.pdf. (access: 6.3.2019). 39 Immanuel Kant, Lectures and Drafts on Political Philosophy, cit.: 73–180 (passim).

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hand, the concept of effective access to justice law seeks to assign categorical moral duties to citizens (such as do right the thing; obey to the law40 ; respect others as eminent human beings,41 which includes the other disputants, the mediator, the lawyer, and the incorporative mediator). All private interests. 4. Kant’s moral concept of law is anchored in the pillars of morality.42 Hence the moral concept of law.43 At the heart of Kant’s moral concept of law lies a sturdy political authority44 espoused with the consummate, and thus the supreme, value allotted to human dignity45 ,46 from which categorical moral duties such as respecting others as persons arise. A moral concept of law that is both responsive

40

See: Lon L. Fuller, “A Reply to Professors Cohen and Dworkin”, Villanova Law Review 10 (1965): 657 (noting that «it is generally accepted that the citizen has, under ordinary circumstances and subject to exceptions, a moral duty to obey the law»); see also, Lon L. Fuller, The Morality of Law, Revised Edition, New Haven, Yale University Press, (1969): 39–42; 81–90 (on citizen’s moral duty to obey the law, which is not to be confounded with judges’ fidelity as a «species of congruence between official action and the law»). 41 Bernd Ludwig, “Sympathy for the Devil (s)? Personality and Legal Coercion in Kant’s Doctrine of Law”, Jurisprudence, 6 (2015): 34 ff (arguing that human beings have certain moral duties to abide by, such as treating others, including legal officials, with utmost respect). 42 Immanuel Kant, Metaphysics of Moral, cit.,: passim. 43 Robert Alexy, The Argument from Injustice, A Reply to Legal Positivism, Oxford, Oxford University Press, (2002): 1–160 (118) (noting that Kant’s moral concept of law aims to grasp legal certainty and civic peace). 44 Immanuel Kant, Lectures and Drafts on Political Philosophy, cit.: 73–180 (passim). 45 Human dignity is a Kantian-inspired notion which were to send ripples across cultures of dignity, mainly from the fundamental rights standpoint. In German doctrine: Thilo Ramm, “Die sozialen Grundrechte im Verfassungsgefüge”, in: Soziale Grundrechte—5. Rechtspolitischer Kongress der SPD vom 29. Februar bis 2. März 1980 in Saarbrüchen, Heidelberg/Karlsruhe, (1981): 28–32; in Portuguese doctrine, Catarina Santos Botelho, “40 anos de Direitos Sociais: uma reflexão sobre o papel dos Direitos Fundamentais Sociais no Século XXI”, Julgar, 29 (2016): 197 ff; in French doctrine, Jacques Fierens, “La dignitè humaine comme concept juridique”, Journal des tribunaux, 121, (2002): 578–580. 46 Natalia Brigagão Ferrer Alves Carvalho, “Catholic Social Thought, Politics and Human Dignity in the Brazilian Constitutional Assembly of 1987–1988”, The American Journal of Legal History, 1 (2019): 1–30 (4) (noting the utmost importance of human dignity in the debates of the Brazilian Constitutional Assembly, which was significantly shaped by Catholic social thought and politics).

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to general interests and private interests. Insofar the authority of law is premised on a multilateral moral duty, there is a heightened duty to show respect for others as they are eminent human beings. 5. I am not all alone in this interpretation of Kant’s moral concept of law47 and Doctrine of Right. Polymath doctrine posits that «at the centre of Kant’s Doctrine of Right lies an argument for a moral concept of law. Here he reveals his understanding of political authority, which is, in turn, shown to be embedded entirely within his broader practical philosophy. In sum, Kant argues that the authority of law can only arise from our categorical moral duty to respect other persons as such».48 Which is also «a professional discipline, a system of coercive norms, a type of social rule that allows us to pursue our interests, and a moral phenomenon».49 6. In general, every time someone chooses something is renouncing to something else. Every choice entails a renunciation. In legal dynamics of mediation, such is not the case though. Although every human action is primarily geared toward the maximization of his own interests (dubbed by Kant as our positive valuation of our desires50 ), such crave must be countervailed with legal directives to be abided by legal officials, such as mediators. Taken together, both are amenable to cater to the overall functional credibility of the system of justice.

47 B. Sharon Byrd/Joachim Hruschka, Kant’s Doctrine of Right: A Commentary, Cambridge, Cambridge University Press, (2010): 72 ff (noting that—here and there—Kant’s parlance has been pervaded by a so-called Hobbesian tone. Especially from the violence of the state of nature and the «barbarous freedom» standpoint). Converging: Ross Harrison, Hobbes, Locke and Confusion’s Masterpiece, Cambridge, Cambridge University Press, (2003): 120–123 (arguing that human nature has a markedly clear yearning to survive—a Hobbesian claim). 48 Patrick Capps/Julian Rivers, “Kant’s Concept of Law”, The American Journal of Jurisprudence, 63 (2) (2018): 259–294 (260). 49 Id. 50 In German doctrine, Immanuel Kant, Gesammelte Schriften, Abtheilung I: Werke: Gesammelte Schriften/Akademieausgabe, Bd.5 (Abt.1, Werke, Bd.5), Kritik der praktischen Vernunft; Kritik der Urteilskraft. Gebundenes Buch–1. März 1963, Berlin, Walter de Gruyter, (1963): 6:390–391 ff.

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Joseph’s Raz Legal Directives or Standards of Behaviour to Set the Tone to the Unfolding of Joint Mediation Sessions and Caucuses (with a View to Cater to the Overall Functional Credibility of the System of Justice): Setting the Stage to the Two-Pronged Model of Fairness-Abiding Mediator in the Remit of Mediator Misconduct

1. Joseph Raz’s51 -inspired legal directives52 ,53 ,54 to be abided by legal officials55 (members of the system of justice—mediators enrolled in court-connected mediation programs rosters) are allotted the paramount task to cater to the overall functional credibility of the system of justice. In this respect, such legal directives amount to mediators’ standards of behaviour (mirrored on the respectful and fair treatment the disputants are bound to receive) that should set the tone to the unfolding of both joint mediation sessions and caucuses sessions. Which, taken together, must contribute to yield enhanced effective access to justice as an extension of Rule of Law. The more effective the access to justice is, the more prestige (and positive legal-real-feel will be felt and) thrown into Rule of Law’s realm. 2. Similarly, disputants (as they formally access the system of justice) must be bound to abide by a categorical moral duty to respect other persons as such. Be them other disputants. Be them the legal officials. Such as mediators. The more 51

Raz, just like Hart, are (somewhat surprisingly) deemed non-instrumentalists; see Mark J. Bennet, “Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration”; Law and Philosophy, 30 (2011): 615–523; Mathew Kramer, “Scrupulousness Without Scruples: A Critique of Lon Fuller and His Defenders”, Oxford Journal of Legal Studies, 18 (1998): 236–262 (showing reluctance about the moral value of compliance with the mere principles of legality); Kevin Walton, “Lon L. Fuller on Political Obligation”, The American Journal of Jurisprudence, 63 (2) (2018): 175–188 (echoing the same views). 52 Joseph Raz, The Morality of Freedom, Oxford, Oxford University Press, (1986): 58 ff (noting that a good system of legal directives can play a role in attaining general interests thus having a mediation role within a given community). 53 Joseph Raz, “Postema on Law’s Autonomy and Public Practical Reasons: A Critical Comment”, Legal Theory, 4 (1998): 8 ff (this renowned author seems to be on the route of distancing himself from the moral concept of law and the theoretical basis laid therein). 54 Margaret Martin, Judging Positivism, Oxford, Hart Publishing, (2014): 1–198 (168–179) (echoing the same views, Judging Positivism amounts to a critical exploration of the method and substance of Raz’s legal positivism: «Margaret Martin is primarily concerned with the manner in which theorists who adopt the dominant positivist paradigm ask a limited set of questions and offer an equally limited set of answers, artificially circumscribing the field of legal philosophy in the process. The book focuses primarily but not exclusively on the writings of prominent legal positivist, Joseph Raz. Martin argues that Raz’s theory has changed over time and that these changes have led to deep inconsistencies and incoherencies in his account»). 55 Joseph Raz, The Morality of Freedom, cit.: 171 (Raz rejects the Correlativity Axiom to be the conjoint claim that: Rights entails duties. Thereto he states that «A right of one person is not a duty on another. It is the ground of a duty, a ground which, if not counteracted by conflicting considerations, justifies holding that other person to have a duty»); see also, Mark Bride, “Raz’s Definition of Right”, Ratio Juris, 31 (4) December 2018, (2018): 460 ff (noting also that Raz’s definition of right—though immensely influential—does not encompass the Correlativity Axiom).

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procedural respect is yielded within the justice system,56 the more buttressed (and stiffened) will be the fundamental tenets of Rule of Law in the process. I thus adhere to the procedural approach to Rule of Law outlined by Professor Jeremy Waldron, to which I will refer later in this book. Hardly any surprise stems from the fact that both Raz’s legal directives and Waldron’s procedural approach to the Rule of Law are to set the stage to my newly-crafted the two-pronged model of fairness-abiding mediator 57 in the remit of mediator misconduct. 3. In this vein, disputants must be afforded both a formal access to justice (a disputants’ unwavering right) and an effective access to justice as an extension of Rule of Law (an unmissable collective obligation allotted to legal officials58 in an overarching sense). Such a stance means that the private interests (equal access to procedural action and formal access to justice)59 and the general interests60 (especially a to-be-widely-accepted policy61 of wealth procedural maximization in a given jurisdiction, the cloak under which the effective access to justice as an

56

Aleksander Peczenik, “Law, Morality, Coherence and Truth”, in: Ratio Juris, Volume 7 (2), July 1994, (1994): 161 ff (pinning down a necessary connection between law and morality in terms of a deontological morality). 57 See: Part 4, this chapter, point 5.4.2.1. of this book (on the importance of the two-pronged model of effective fairness-abiding mediator to cater for the effective access to justice as an extension of the Rule of Law). 58 Marcus Willascheck, “Which Imperatives for Right? On the Non-Prescriptive Character of Juridical Law in Kant’s Metaphysics of Morals”, Kant’s Metaphysics of Morals: Interpretative Essays, Mark Timmons (Ed.), Oxford, Oxford University Press, (2002), Chap. 3 (arguing that both interests often collide—private interests and general interests). 59 In German doctrine, Robert Alexy, Theorie der Grundrechte, Franfurt am Main, Suhrkamp, (1996): passim (referring to the two-layered nature of fundamental rights, such as the access to justice, which serve both as a rule and as a principle). 60 Gerald Postema, Legal Philosophy in the Twentieth Century: The Common Law World, New York, Springer, (2011): 363–366 (parsing the so-called instrumental concept of law that encompasses general interests. My moral concept of law, drawing upon Kant’s moral concept of law, aims to square both private interests and general interests, thus dodging the «bullet» of criticism that this approach has been raising so far). 61 Ronald Dworkin, Taking rights seriously, 2nd edition, London, Duckworth Books, (1982): 3–88 (debunking the lack of consistency of Hart’s legal positivism, chiefly for losing sight of the fact that a legal system is not to be bogged down to mere rules, thus comprising also principles and policies); see also Ronald Dworkin, Law’s Empire, Oxford, United Kingdom, (1998): 190–192 (on the moral duty to obey the law).

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extension of Rule of Law is wrapped) must be, ought to be, squarely aligned62 in legal dynamics of mediation. 4. Accordingly, the legal directive-obligation63 ,64 to display unquenchable respect to other disputants65 (a Kant’s categorical moral duty) as they access the system of justice (formal access to justice) dovetails seamlessly66 with the categorical 62

Jeremy Waldron, “Kant’s Legal Positivism”, Harvard Law Review, 109 (1996): 1563 ff (squarely aligning general interests with private interests seems to underlie Professor Jeremy Waldron’s stance on Kant’s legal philosophy. The following excerpt elicits such an impression «So a person is not to regard his allegiance to the state as a voluntary commitment intelligible purely in terms of benefit to his own interests alone. If the subject wants to think about the advantages of membership in civil society, then he must think relationally about what that membership secures, so far as the reciprocity and mutual assurance between his rights and others ‘rights are concerned, In other words, he is to be aware that his presence in the civil society is as necessary for the interest and advantage of others—others who would be entitled to compel him to enter if he did not want to enter») (italics added). 63 An academic note of caution is in order: Hart’s positivist level runs in nonconformity with Kant’s moral concept of law, also adopted by Alexy, and (to, a certain extent, Waldron, Dworkin, and Raz) to which I have been alluding to throughout this book; H. L. Hart, The Concept of Law, 3rd edition, Oxford, Oxford University Press, (2012): 5–6 (noting that certain forms of human behaviour are mandatory as opposed to merely optional by stating—devoid of any scent of morality in law nonetheless—«The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory»); H. L. Hart, “Are There Any Natural Rights?”, Philosophical Review, 64 (1955): 185–186 (arguing that fairness as one of the bedrocks of his positivist theory of law); H. L. Hart, “Problems of the Philosophy of Law”, in: Essays in Jurisprudence and Philosophy, Oxford, Clarendon Press, (1983): 118–119 (echoing the same views, which frontally collide with Professor Lon L. Fuller’s views according to which there is a moral duty to obey the law). 64 H. L. Hart, “Lon L. Fuller: The Morality of Law”, in: Essays in Jurisprudence and Philosophy, Oxford, Oxford University Press, (1983): 360 ff (Professor H. L. Hart were to criticize the argument of the morality of law brought forward by Professor Lon L. Fuller, thus igniting a debate that would send academic ripples across the academic world. According to Professor H. L. Hart, social facts— as opposed to a moral duty to obey the law as Professor Lon L. Fuller’s puts it—premise the existence of law); See Lon. L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart”, Harvard Law Review, 71 (1958): 630–672 (replying—almost word-by-word—to Professor Hart’s positivist approach to law). This debate was to be reignited—and prompted—by a series of articles on jurisprudence and philosophy of law arising from the 50th anniversary and cobbled together in a commemorative volume; see New York University Law Review, 83 (2008): 993–1212. See also: Peter Cane (Ed.), The Hart-Fuller Debate in the Twenty-First Century, Oxford, United Kingdom, Hart Publishing, (2010): 1–308 (this book comprises papers delivered at a colloquium held at the Australian National University in December 2008 to celebrate 50 years since the publication in the Harvard Law Review of the famous academic debate between Prof. H.L. Hart and Prof. Lon L Fuller). 65 Arthur Ripstein, “Authority and Coercion”, Philosophy and Public Affairs, 32 (2004): 1–33 (adducing that, in light of Kant’s philosophy, the reason for men leaving the Hobbesian state of nature is fundamentally a moral one). 66 Arthur Ripstein, Force and Freedom, Cambridge, Massachusetts, Harvard University Press, (2009): 1–416 (passim) («Ripstein shows that Kant’s thought is organized around two central claims: first, that legal institutions are not simply responses to human limitations or circumstances; indeed the requirements of justice can be articulated without recourse to views about human inclinations and vulnerabilities. Second, Kant argues for a distinctive moral principle, which restricts the legitimate use of force to the creation of a system of equal freedom. Ripstein’s description of

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moral duty ascribed to legal officials (mediators enrolled in court-connected mediation program rosters) to offer (and therefore grant) to the disputants both a formal access to justice and an effective access of justice as an extension of Rule of Law. I can say that this is a glimpse of a «relational purpose»67 within the system of administration of justice.68 A correct relational purpose between disputants and legal officials. 5.1.3.3

Robert Alexy’s Correctness Thesis to Which Legal Officials and Disputants must Abide by (to Further Cater to the Overall Functional Credibility of the System of Justice)

1. Against the background of Kantian moral concept of law and Raz’s legal directives which, taken together, strive to cater to the overall functional credibility of a given system of administration of justice, I also adhere to Professor Robert Alexy’s correctness thesis69 —the theoretical underpinning of, and the propelling force behind, the claim to correctness of legal officials and disputants within the purview of my Four-Tiered Model of Mediation. 2. A claim to correctness that is a two-layered concept to which both the disputants and the legal officials are bound to abide by. Which is a moral concept of law which states that a claim to correctness (aimed also at sweep aside, and cast off, any hint of coercion in mediation or any shiver of invidiousness displayed in both joint mediation sessions and caucuses) must usher in the effective access to justice as an extension of Rule of Law.70 By the same token, the pathway towards procedural approach to the Rule of Law will be bereft of roadblocks.

the unity and philosophical plausibility of this dimension of Kant’s thought will be a revelation to political and legal scholars»). 67 Gunther Teubner, “Coincidentia Oppositium: Hybrid Networks Beyond Contract and Organization”, Networks. Legal Issues of Multilateral Co-operation, Oxford/Portland (Oregon), Hart Publishing, (2009): 127 (noting the importance of hybrid networks and the relational purpose in a given system of justice). 68 Arthur Ripstein, Force and Freedom, cit.: 1–416 (35) (arguing that persons are members of a (legal) community amidst a «relation of equivalence»). 69 Robert Alexy, The Argument from Injustice, A Reply to Legal Positivism, Oxford, Oxford University Press, (2002): 1–160 (70 ff) (on correctness of content). 70 In German doctrine, Robert Alexy, Begriff und Geltung des Rechts, 4th edition, Frankfurt am Main, Suhrkamp, (1992): 64–70 (noting that the laws, rights, and the legal system in which the former rests upon must be as rational as they can be).

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The Procedural Approach to the Rule of Law outlined by Jeremy Waldron and Lon L. Fuller’s Responsible’ Agency as Theoretical Underpinnings of Effective Access to Justice as an Extension to the Rule of Law as a Three-Fold Concept to Tail off (or Stamp Out) Legal Officials’ (Human) Frailties

Setting the Stage to the Functional Accountability to the Rule of Law that the Stellar Incorporative Mediator Must Abide by 1. My newly-crafted concept of effective access to justice must not fall short of matching the fundamental tenets of Rule of Law.71 ,72 This is not a credulous, much less a gullible, leap of faith.73 Rather, it is a brawny assertion that human beings (being that disputants and legal officials in pre-suit court-connected mandatory mediation programs, such as mediators and lawyers) fall prey to a bevy of human frailties that (more often than not) are in dire need of being quashed. 2. The effective access to justice74 as an extension of the Rule of Law amounts (also) to a three-fold concept that is aimed at allaying such human frailties. At the first layer, exhorts legal officials to muster up their best endeavours as to provide a swift, fuss-free and streamlined justice to the citizens. At the second layer, incites (truly: prods) disputants to bring along the best of themselves to the table of mediation aimed at upholding their Kantian categorical moral duty to treat 71

Dylan Dino, “The Rule of Law and the Rule of Empire: A. V. Dicey in Imperial Context”, The Modern Law Review, 81 (5) (2018): 739–764 (739–741) (noting that «the idea of the rule of law, more ubiquitous globally than ever before, owes a lasting debt to the work of Victorian legal theorist A.V. Dicey (…) To Dicey we owe not only the phrase “the rule of law” but also one of the most influential expositions. Dicey’s account of the rule of law emphasised three elements: first, government through legal norms and procedures rather than unrestrained discretion; second, formal equality before the law; and third, the establishment of individual rights through gradual, bottom-up (common-law) development»). 72 T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution, and the Common Law, Oxford, Oxford University Press, (2013), Chap. 3; J.W.F. Allison, “Turning the Rule of Law into an English Constitutional Idea’”, C. May/A. Winchester (Ed.), The Edgar Elgar Handbook on the Rule of Law, Cheltenham, Edward Elgar Publishing, (2018): passim (giving nuanced accounts on Dicey’s ground-breaking work and originality when it comes to Rule of Law). 73 John Gardner, Law as a Leap of Faith, Oxford, Oxford University Press, (2014): 1–328 (in this book Professor John Gardner «collects, revisits, and supplements fifteen years of celebrated writings on general questions about rule of law, law, and legal systems—writings in which he attempts, without loss of philosophical finesse or insight, to cut through some of the technicalities with which the subject has become encrusted in the late twentieth century»). 74 Hazel Genn, “What is Civil Justice For? Reform, ADR, and Access to Justice”, Yale Journal of Law & the Humanities, Vol. 24 (1/18), (2012): 397 (stating that justice serves much more than private interests. Which means that «the starting point is that the civil justice system is a public good that serves more than private interests. The civil courts contribute quietly and significantly to social and economic well-being. They play a Part in the sense that we live in an orderly society where there are rights and protections, and that these rights and protections can be made good. In societies governed by the rule of law, the courts provide the community’s defence against arbitrary government action»).

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others75 (including legal officials, mediators, and other disputants) with utmost respect.76 At the third layer, allots to legal officials the Kantian categorical moral duty to be keenly beware of, and eagerly watchful of, social imbalances77 and social inequalities78 as to quash them in a pre-suit court-connected mandatory mediation with an easy opt-out program79 or elsewhere.80 Thus bestowing upon legal officials a functional accountability to the Rule of Law to uphold for and to abide by. Concisely: a procedural accountability to the Rule of Law. In addition to that, a responsible agency theory to abide by and to comply with. Both concepts have been gleaned on the fecund soil of Philosophy of Law. They both amount to theoretical underpinnings of incorporative mediation (a new style of mediation) that seeks to protect the weakest disputant (in the room and thus in the remit of legal dynamics of mediation) from the devilishly harmful virus of bargaining imbalances, power imbalances, procedural imbalances, gender imbalances, racial biases and so forth.

75

Sean Keveney, “Note, The Dishonesty Rule: A Proposal for Reform”, Texas Law Review, 81 (2002): 381–383 (arguing that «a Rule of (L)aw that fails to yield results with a minimum degree of consistency or predictability is of little use as an analytical tool and ceases to serve the legitimate goal of ordering the conduct of citizens»). 76 Jeremy Waldron, “Kant’s Legal Positivism”, Harvard Law Review, 109 (1996): 1563 ff (as previously mentioned, Professor Jeremy Waldron’s stance aims to squarely aligning private interests with general interests. The following excerpt gives credence to such assertion «so a person is not to regard his allegiance to the state as a voluntary commitment intelligible purely in terms of benefit to his own interests alone. If the subject wants to think about the advantages of membership in civil society, then he must think relationally about what that membership secures, so far as the reciprocity and mutual assurance between his rights and others ‘rights are concerned»). 77 John Rawls, Justice as Fairness: A Restatement, 2nd edition (16th of May of 2001), Cambridge, Massachusetts, Belknap Press: An Imprint of Harvard University Press, (2001): 1–240. 78 John Rawls, A Theory of Justice, 2nd edition (30th of September of 1999), Cambridge, Massachusetts, Belknap Press: An Imprint of Harvard University Press, (1999): 99 ff and passim (noting that justice – to be justice indeed—requires more than mere legality). 79 J. J. Prescott, “Assessing Access-to-Justice Outreach Strategies”, Journal of Institutional and Theoretical Economics, 174 (2017): 34–63 (arguing that «a core function of government is providing a forum where individuals can resolve their disputes. Access to courts of law has always been considered a valuable publicly provided benefit, if not a fundamental right. Unfortunately, the willingness does individuals to take up—i.e., use—these services is almost certainly below what is socially optimal»). 80 Lon L. Fuller, The Morality of Law, The Storrs Lectures Series (1963), Revised edition (1969), New Haven, Connecticut, Yale University Press, (1969) (1–215) (39) («in a lengthy new concluding chapter labelled “A Reply to Critics,” Lon L. Fuller extends and clarifies his definition of the relation between law and morality put forward in the first (1964) edition of The Morality of Law. His original argument distinguishes between the morality of duty and the morality of aspiration, both of which bear on the design and operation of social institutions: the former by setting the necessary preconditions of any purposive social endeavour, the latter by suggesting the directions for such endeavour). (Noting that the legal systems must find feasible ways to avoid «routes to disaster»).

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3. Both Professor Jeremy Waldron’s procedural81 approach to the Rule of Law82 and Professor Lon. L. Fuller’s83 responsible agency theory84 are aimed at steering the functional activity of legal officials. Thus they are placed at the first layer and at the third layer of effective access to justice as an extension to the Rule of Law. 4. Jeremy Waldron’s procedural approach to the Rule of Law85 is two-layered.86 On one hand, means that the Rule of Law is tightly interlocked to procedural87 concerns.88 The disputants must be offered the procedural opportunity to not only be part of a due process, but also be afforded the opportunity to challenge the legal decisions issued89 in the remit of legal dynamics of mediation. On the other

81

Corey Brettschneider, “A Substantive Conception of the Rule of Law: Nonarbitrary Treatment and the Limits of Procedure”, Getting to the Rule of Law, James E. Fleming (Ed.), New York, New York University Press, (2011): 53–61 (arguing that Waldron’s procedural approach to the Rule of Law entails some substantive constraints). 82 See Jeremy Waldron, “The Rule of Law in Contemporary Liberal Theory”, Ratio Juris, 2 (1989): 78 ff (arguing that a substantive conceptual of Rule of Law is not out of question). 83 John Finnis, Natural Law and Natural Rights, 2nd edition, Oxford, Oxford University Press, (2011): 273–275; 290–293 (arguing, however, that is not perfectly clear the extent to which Fuller’s internal morality of law and external morality of law are interwoven); Kristen Rundle, Forms Liberate, Reclaiming the Jurisprudence of Lon L. Fuller, Oxford, Hart Publishing, (2012): 1–222 (4) (this author parses carefully Lon L Fuller’s account «of what he termed ‘the internal morality of law’ is widely accepted as the classic twentieth century statement of the principles of the rule of law. Much less accepted is his claim that a necessary connection between law and morality manifests in these principles, with the result that his jurisprudence largely continues to occupy a marginal place in the field of legal philosophy) (further down the book, Rundle contests the widespread claim that there is a bifurcation between internal morality of law and external morality of law in Fuller’s doctrine stating avowedly that «at no point in his writings does Fuller claim any necessary connection between the two moralities»). 84 Lon L. Fuller, The Morality of Law, cit., (1–215) (passim). 85 Jeremy Waldron, “The Core of the Case Against Judicial Review”, Yale Law Journal, (2006): 1346–1389 (showing concerns about the overall state of US democracy). 86 Jeremy Waldron, “Legislation and the Rule of Law”, Legisprudence, 1 (2007): 91–115 (arguing that substantive conception and formal conception of Rule of Law are independent but—to some extent—connected). 87 A. Wallace Tashima, “The War on Terror and the Rule of Law”, Asian American Law Journal, 15 (2008): 245–263 (echoing the same procedural approach to the Rule of Law while asserting that independent and impartial legal officials are needed to uphold the Rule of Law). 88 Jeremy Waldron, “The Rule of Law and the Importance of Procedure”, New York Public Law and Legal Theory, (2010): 4 (noting that «the Rule of Law is violated when due attention is not paid to these procedural matters or when the institutions that are supposed to embody these procedure are undermined or interfered with». Further down this author would admit that there are some substantive dimensions of Rule of Law, such as respect for right for property and presumption of liberty and so forth). 89 Sanne Taekema, “The Procedural Rule of Law: Examining Waldron’s Argument on Dignity and Agency”, Jahrbuch für Recht und Ethik, Band 21, (2013): 133 ff (noting that «Waldron’s understanding of the Rule of Law as procedural which demands the opportunity for individuals to contest legal decisions in the formalized processes of courts and tribunals»).

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hand, the Rule of Law aims to dwindle, and to abridge, legal officials’ human frailties90 to which I have referred to earlier in this section. 5. The Rule of Law91 is therefore aimed at dwindling functional92 abuses93 from those in power. It is thus aimed at curtailing (amongst many other things) legal officials’ human frailties.94 In overseeing the legal officials’ functional activity95 , ,96 the Rule of Law assumes the position of a functional stronghold (or fortress) of disputants’ human dignity.97 6. Against this background, legal officials98 (ranging from judges to mediators) are to be portrayed as impartial wardens99 of a sturdy and robust Rule of

90

Joseph Raz, “The Rule of Law and its Virtue”, The Authority of Law: Essays on Law and Morality, Oxford, Clarendon Press, (1979): 210–214 (on the quintessential value of Rule of Law). 91 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th Revised Edition (1 Jan. 1982), Indianapolis, Indiana, Liberty Fund Inc., (1982): 1–585 (188–197). 92 Joseph Raz, “The Rule of Law and its Virtue”, The Authority of Law: Essays on Law and Morality, cit.: 224 (stating adamantly that the Rule of Law is aimed at correcting and cushioning the hazards of abuse. On that account, Raz contends that «the law inevitably creates a great danger of arbitrary power—the Rule of Law is designed to minimize the danger created by the law itself…Thus the (R)ule of (L)aw is designed to minimize the danger created by law itself…Thus the (R)ule of (L)aw is a negative virtue…the evil which is avoided is evil which could only have been caused by the law itself»). 93 Ronald A. Cass, The Rule of Law in America, Baltimore, Maryland, The Johns Hopkins University Press, (2001): 17 (noting that a «central element of the Rule of law, constraint from external authority…helps assure that the process of government, rather than the predilections of the individual decision-maker») (italics added). 94 Sanne Taekema, “The Procedural Rule of Law: Examining Waldron’s Argument on Dignity and Agency”, cit.: 134 ff (arguing that the «Rule of Law is understood as the restraint law puts on those in power. The famous phrase: Rule of Law, not man, encompasses the idea that a person in a position of power should not be left to his own device, but should be subject to legal limitations») (italics added). 95 Ronald Dworkin, Taking rights seriously, London, Duckworth Books, (1977): 186–205 (noting that persons ‘rights and governments activities to protect it are interwoven). 96 Jeremy Waldron, “The Rule of Law as a Theater of Debate”, Dworkin and his Critics, Justine Burley (Ed.), Oxford, Blackwell, (2004): 319–336 (criticizing Dworkin’s concept of Rule of Law). 97 Sanne Taekema, “The Procedural Rule of Law: Examining Waldron’s Argument on Dignity and Agency”, cit.: 140 ff (arguing that the «Rule of Law serves the value of human dignity»). 98 John Locke, Two Treatises of Government, Peter Laslett (Ed.), Cambridge, Cambridge University Press, (1988): 329–349 (passim) (on the notions of government, and concepts of individual rights and freedom). 99 Lon L. Fuller, The Morality of Law, The Storrs Lectures Series (1963), Revised edition (1969), New Haven, Connecticut, Yale University Press, (1969) (1–215) (46–91) (Professor Lon L. Fuller pinpoints eight principles morally internal to law as order. They are connected to both Rule of Law and to the principle of legality. Being that the principle of congruence between official action and enacted laws; generality; promulgation; non-contradiction; non-retroactivity; non-impossibility; clarity; and diachronic constancy).

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Law.100 Which means that in legal dynamics of mediation there is a tacit101 (or implicit102 ,103 ) interaction104 between disputants and legal officials.105 The former abides by a Kantian’s moral concept of law (by upholding the categorical moral duty to treat others as eminent human beings—including the legal officials—while showing utmost respect for them). The latter are regarded as guardians of legality106 and fairness107 aimed at stamping out any procedural imbalances displayed in legal dynamics of mediation. Or any other violations to disputants’ human dignity.108 Chiefly in the remit of legal dynamics of mediation.109 The sizzling hot topic of mediator misconduct is arguably a matter that begs for such an enhanced protection of disputants’ human dignity in the remit of legal dynamics of mediation. 100

Jeremy Waldron, “The Rule of Law and the Importance of Procedure”, Getting to the Rule of Law, James E. Fleming (Ed.), New York, New York University Press, (2011): 8 (arguing that Professor Lon L. Fuller’s eight moral principles internal to law as order are «formal» as opposed to «procedural»). 101 David Hume, A Treatise of Human Nature, Ernest C. Mossner (Ed.), London, Penguin Books, (1985): 599 (a tacit promise must not be unbeknownst to the disputants though. As David Hume so well puts it: «a tacit promise is, where the will is signified by other more diffuse signs than those of speech; but a will there must certainly be in the case, and that can never escape the person’s notice, who exerted it, however silent or tacit»). 102 Lon L. Fuller, The Morality of Law, cit., (1–215) (209) (noting that when there is law disputants have a moral obligation to abide by it. Why? Because there is a stable reciprocity between the lawmaker or policymaker. In his view, «the existence of a relatively stable reciprocity of expectations between lawgiver and subject is part of the very idea of a functioning legal order»). Absent such reciprocity of expectations, law is unable to fulfil its «central purpose, which is – according to Professor Lon L. Fuller—to «furnish baselines for human interaction»). 103 Lon. L. Fuller, “Human interaction and the Law”, The Principles of Social Order: Selected Essays of Lon. L. Fuller, Kenneth I. Winston, Revised Edition, Oxford, Hart Publishing, (2001): 254 (as hinted above, absent such reciprocity of expectations, law is unable to fulfil its «central purpose», which is—according to Professor Lon L. Fuller—to «furnish baselines for human interaction»). 104 Kevin Walton, “Lon L. Fuller on Political Obligation”, The American Journal of Jurisprudence, 63 (2), (2018): 175–188 (177 ff) (emphasizing that «the reciprocity between citizens and officials on which, according to Fuller, the existence of a legal system depends cannot, then take the form of an implicit agreement, which can be formed unwittingly»). 105 Lon L. Fuller, The Morality of Law, cit., (1–215) (193) (highlighting that «the creation of an effective interaction between (the lawgiver and the citizen) is an essential ingredient of the law itself»). 106 Id. at (40) (according to Fuller’s view, there is no such thing as the existence of law devoid of, and decoupled from, legal officials’ compliance with legality). 107 Jeremy Waldron, “The Concept and the Rule of Law”, Georgia Law Review, 43 (1) (2008): 7 (arguing that «a procedural understanding of the Rule of Law requires not only that officials apply the rules as they are set out; it requires application of the rules with all the care and attention to fairness that is signalled by ideals such as «natural justice» and «procedural due process»). 108 Evan Fox-Decent, “Is the Rule of Law Indifferent to Human Rights?”, Law and Philosophy, 27 (2008): 533 (affirming that breaches on legality equate to breaches in human rights and dignity). 109 Jacqueline Nolan-Haley, “Does ADR’s Access to Justice Come at the Expense of Meaningful Consent”, Ohio State Journal of Dispute Resolution, 33 (2018): 374 («legal scholars and policymakers are rightly concerned with access to justice, asking whether potential litigants from all economic backgrounds have meaningful access to the legal system»).

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5.1.4 Mediation Ethics (to Further Dwindle the Scourge of) Mediator Misconduct 5.1.4.1

Mediation Ethics in the Epoch of «Vanishing Trials»: Introduction

1. There is no legal dynamics of mediation whatsoever devoid of, and detached from, a brawny mediation ethics. Mediation ethics entails transparency110 coupled with, and squarely aligned to, robust mediator quality standards. Legal dynamics of mediation (and much less mediator’s quality standards) should not be shrouded in, much less totally limited by the yoke of, secrecy111 often wrapped in opaqueness. Which would sully public’s perception of openness in, and of, courts.112 2. In the wake of the so-called Fourth Era of American Civil Procedure,113 there has been an ongoing trend towards the demise of civil trials.114 Which means that disputants are bound to have fewer days115 in court.116 Even when those 110

Joseph W. Doherty/Robert T. Reville/Laura Zakaras (ed.), Introduction to Confidentiality, Transparency, and the U.S. Civil Justice System, Oxford, Oxford University Press, (2012): 1–258 (passim) (noting that the lack of transparency yields sizable social costs). 111 Judith Resnik, “Lawyers ‘Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes”, Fordham Law Review, 85 (2017): 1899–1941 (contends that most of dispute resolution proceedings operate under the shadow of, and are engulfed in a curtain shrouded in, secrecy/closed doors). 112 Judith Resnik, “The Contingency of Openness in Courts: Changing the Experiences and Logics of the Public’s Role in Court-Based ADR”, Nevada Law Journal, 15 (2015): 1631–1637 (casting light on the ongoing trend of promoting «Alternative» Dispute Resolution and outsourcing dispute resolution to private providers while dubbing both as sources of secrecy in the current landscape of dispute resolution). 113 Stephen N. Subrin/Thomas O. Main, “The Fourth Era of American Civil Procedure”, University of Pennsylvania Law Review, 162 (2014): 1839 ff (the tagged Fourth Era of American Civil Procedure amounts to an epoch in which most disputes settle). See also: Thomas O. Main, “Mediation: An Unlikely Villain”, Ohio State Journal on Dispute Resolution, 34 (3), (2019): 562 ff and passim (on the emergence of the Fourth Era of American Civil Procedure, in which mediation, and the phenomenon of vanishing trials, are to blame for the shrinkage of cases disposed by courts of law). A piece of research that I will follow closely. 114 Benjamin Spencer, “The Restrictive Ethos in Civil Procedure”, George Washington Law Review, 78 (2010): 353 ff (showing concerns with the quality of the access to justice afforded to victims of wrongdoing). 115 Gillian K. Hadfield/Jamie Heine, “Life in the Law-Thick World: Legal Resources for Ordinary Americans”, Sam Estreicher/Joy Radice (Eds.), Beyond Elite Law: Access to Civil Justice in America, New York, NY: Cambridge University Press, (2016): 23–51 (this is consistent with the perceived high costs associated to litigation in courts). Unsurprisingly, Governments worldwide have been pledging themselves to look for other mechanisms to solving disputes. Amicable mechanisms of settling disputes stand out from the crowd. Which should not come as a surprise to anyone committed to afford disputants both a formal access to justice and an effective access to justice as an extension of Rule of Law. Like I do. 116 Arthur R. Miller, “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure”, New York University Law Review, 88 (2013): 286 ff (also bringing forth his concerns about the candent issue of the quality to access to justice—or

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lawsuits find their way to court, there is an increasing number of lawsuits that settle and whose settlement terms are kept confidential and therefore taken away from public’s prying eyes.117 Scholars have not been sluggish to overtly decry such trend.118 This has been tagged as the running train of, and the unruly horse of, vanishing trial.119 Here lies the liaison between the sweltering issue of vanishing trials and the candent issue of both the access to courts and the access to justice.120 Most of the times, vanishing trials come to the expense of disputants’ informed consent.121 Thus casting doubts on the fairness (or the lack thereof) of such proceedings.122 3. Against this backdrop, the sizzling hot topic of mediation ethics is somewhat related with both the candent issue of vanishing trials and confidentiality. It comes down to simple math: less trials will pave the way to more mediation sessions. As such, the sizzling hot topic of confidentiality in legal dynamics of mediation will be brought into a sharper focus. The crux of my assertion is that legal dynamics of mediation must be, in general, wrapped under the shroud of secrecy and confidentiality, but must not be totally limited by, the yoke of secrecy and confidentiality. A dash of openness in the purview of Rule of Law123 (where needed to protect plaintiffs’ right to seek redress in the remit of mediator’s malpractice lawsuits) is to be welcomed. Piercing the veil of confidentiality of legal dynamics of mediation sessions to streamline mediator’s malpractice lawsuits is bound to spearhead, and to pave the way to attain, such a laudable goal. This is the only way to preserving both the matrix of, and the fundamental

the lack thereof—that comes along with, and is associated to, the dubbed Fourth Era of American Civil Procedure). 117 Steven G. Gensler/Lee H. Rosenthal, “The Reappearing Judge”, University of Kansas Law Review, 61 (2013): 861–862 (contending that most of what happens in courts of law is increasingly being taken away from, and thus is not being made available to, public’s prying eyes). 118 A. Benjamin Spencer, “The Restrictive Ethos in Civil Procedure”, George Washington Law Review, 78 (2010): 352 ff (decrying the so-called restrictive ethos in modern civil procedure law). 119 Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts”, Journal of Empirical Legal Studies, 1 (2004): 459 ff (drawing attention to the hazard that comes along with, and is to be associated to, the phenomenon of vanishing trials). 120 Richard C. Reuben, “ADR and the Rule of Law”, Dispute Resolution Magazine, 16 (2010): 6 (stressing that Rule of law is interwoven with the access to justice). 121 Jacqueline Nolan-Haley, “Does ADR’s Access to Justice Come at the Expense of Meaningful Consent”, Ohio State Journal on Dispute Resolution, 33 (2018): 386–392 (notes that meaningful informed consent lies at the heart of ADR’s access to justice). 122 Jerome B. Simandle, “Enhancing Access to ADR for Unrepresented Litigants: Federal Court Programs Provide Models for Helping Pro Se Parties—and the Justice System”, Dispute Resolution Magazine, Spring 2016, (2016): 8–10 (to propel fairness and the access to ADR for unrepresented litigants, doctrine is championing for the creation and dissemination of pro bono programs). 123 Tom R. Tyler, “Does the American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to Authority”, De Paul Law Review, 56 (2007): 661–664 (stating that «transparency and openness foster the belief that decision-making procedures are neutral»).

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tenets of, legal dynamics of mediation and to deter124 mediation misconduct at the same time. 4. To accomplish such a commendable goal, a muscle-bound mediation ethics system to grant redress of grievances is in order. There is no such thing as a functional Legal Dynamics of Mediation devoid of, and decoupled from, mediation ethics. There is no such thing as mediation ethics decoupled from, and with no keen attention to, both the functional accountability to the Rule of Law and effective access to justice as an extension of the Rule of Law. With which the styles of mediation (a paramount benchmark to ascertain whether and to what extent mediators have abided by, and have complied with, the fundamental tenets of effective access to justice as an extension of the Rule of Law) are intrinsically interwoven to. Such is the sweeping aim of this section. 5.1.4.2

A Seismic Shift in Mediator’s Misconduct: Mediator Liability Must Be Neither Tethered to Piecemeal Fiduciary Duties Nor to Straggled Contract Law Principles, But to the Formal Access to Justice and Effective Access to Justice as an Extension of the Rule of Law Instead

The Two-Pronged Model of Effective Fairness-Abiding Mediator: Why Is Such Model in Dire Need of Widespread Adoption in Legal Dynamics of Mediation? Introduction 1. As hinted above, the mediator is bound to abide by, and to comply with, the fundamental tenets of both formal access to justice (and, within which core: (i) procedural appearance before others in mediation settings and (ii) equal access to procedural action in mediation settings) and (iii) effective access to justice as an extension of Rule of Law. Which means that the mediator must abide by, and comply with, the baseline requirements of fairness in both joint mediation sessions and caucuses sessions. A seismic shift lurks ahead and draws near. The sizzling hot topic of mediator misconduct must be neither tethered to piecemeal fiduciary duties nor to straggled contract law principles. Rather, the behaviour of a mediator must be squarely aligned to, and must be gauged whether and to what extent chimes in with, the effective access to justice as an extension of Rule of Law. Thereby one can ascertain the degree to which the mediator has abided by, and foremost has complied with, a functional accountability to the Rule of Law. My two-pronged model of the effective fairness-abiding mediator draws on the

124

Jonathan Cardi/Randall D. Penfield/Albert H. Yoon, “Does Tort Law Deter Individuals? A Behavioral Science Study”, Journal of Empirical Legal Studies, 9 (3), (2012): 567–603 (the authors stressed, however, premised on a sound empirical evidence, that «the threat of potential criminal sanctions had a large and statistically significant effect on subjects ‘stated willingness to engage in risky behaviour»).

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theoretical underpinnings of both formal access to justice125 and effective access to justice as an extension of the Rule of Law,126 whose foundations have been laid down earlier in this chapter. 2. My two-pronged model of the effective fairness-abiding mediator is bound to pave the way to, and to usher in: (i) a streamlined procedure to gauge the extent to which the mediator has complied with the fundamental tenets of formal access to justice and effective access to justice as an extension of the Rule of Law; (ii) bypass and circumvent the insurmountable hurdles related with the affordance of relief or redress to plaintiffs in the purview of mediator misconduct; (iii) lay down a functional criterion to set aside mediated settlement agreements beleaguered by the virus of mediator misconduct in the remit of both Legal Dynamics of Mediation (domestic settlement agreements) and Cross-Cultural and Cross-Border Dynamics of Mediation (cross-border settlement agreements); (iv) carve out a functional criterion to halt (and stamp out) the enforcement of both domestic and settlement agreements and cross-border settlement agreements. The Fundamental Tenets of Effective Access to Justice as an Extension of the Rule of Law Mirrored on Both the Effective Fairness of the Process from Which Emerged the Mediated Settlement Agreement and Effective Fairness of the Outcome of the Mediated Settlement Agreement 1. As hinted above, effective access to justice boasts ties with, and is inextricably linked to, the procedural understanding of the Rule of Law. There is no such thing as a functional Rule of Law devoid of, and decoupled from, the baseline requirements of fairness. Stemming from the uppermost importance of the Kant’s moral concept of law, which posits that one must do the right thing for the right reasons, fairness is tightly interlocked to human dignity, which is something that the stellar mediator must never lose sight of in the remit of legal dynamics of mediation. 2. To achieve such an praiseworthy goal, the stellar mediator must pour in a whopping amount of functional effort as to award disputants an effective access to justice as an extension of the Rule of Law, which must be mirrored on: (i) effective fairness of the procedure from which emerged the mediated settlement agreement and (ii) effective fairness of the outcome of the mediated settlement agreement. Both drawn on, and build on, mediator’s functional accountability to the Rule of Law.127

125

See: Part 4, this chapter, point 5.1. to point 5.2. of this book (on the theoretical underpinnings of formal access to justice). 126 See: Part 4, this chapter, point 5.3. to point 5.3.4. of this book (on the theoretical underpinnings of effective access to justice as an extension of the Rule of law). 127 See: Part 4, this chapter, point 5.3.4.1. of this book (on legal officials’ functional accountability to the Rule of law).

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Mediator’s Functional Accountability to the Rule of Law and the (to-be-Fulfilled and Untapped) Promise of a Clean Mediation Process: Effective Fairness of the Procedure from Which Emerged the Mediated Settlement Agreement 1. Effective access to justice builds on, and is intertwined with, a robust Rule of Law. For that reason, I have dubbed this newly-crafted concept as effective access to justice as an extension of Rule of Law. To comply with the fundamental tenets of effective access to justice as an extension of Rule of Law, the mediator must be allotted a functional duty: a functional accountability to the Rule of Law. This accounts for a heightened respect for both the procedural due process and procedural fairness, which are the brawny foundations upon which the mediated settlement agreement must stand. 2. The mediator’s functional accountability to the Rule of Law is bound to usher in a clean mediation process, which is one of the sweeping goals of my twopronged model of the effective fairness-abiding mediator. The other one is gauging whether and to what extent the mediator has abided by, and has complied with, the fundamental tenets of effective access to justice, which will pave the way to my three-pronged test of mediator misconduct. 3. To fulfil the untapped (and long overdue) promise of a clean mediation process, the mediator must take heed of procedural fairness, which is inextricably linked with effective fairness of the process from which emerged the mediated settlement agreement. 4. Against this background, in order to ensure compliance with the fundamental tenets of effective fairness of the process from which emerged the mediated settlement agreement, the mediator must: (i) protect the principle of self-determination and the cultural differentiation of voice; (ii) resort to adaptive mediation to match the disputants ’cultural background, individuality, and modality of communication; (iii) keep procedural imbalances, power imbalances and bargaining imbalances at bay in mediation sessions while adopting an incorporative style of mediation to protect the weakest disputant in the room; (iv) keep party autonomy tokenisation at bay; (v) employ staggering efforts to cast off both coercion in mediation and a pecuniary approach to mediation from Legal Dynamics of Mediation; (vi) raise awareness to harmony-geared consideration during joint mediation sessions. Protect Self-Determination and Cultural Differentiation of Voice 1. A lot of ink has been thrown in this book about the self-determination and cultural differentiation of voice.128 There is no need to trot out old and rehashed ideas. 2. Lest a mediator endeavours to shun the «bullet» of allegations of mediator misconduct, a keen attention must be paid to the cultural differentiation of voice,

128

See: Part 3, Chap. 4, point 4.5. of this book (on the paramount importance of cultural differentiation of voice in the remit of the second tier of my Four-Tiered Model of Mediation, whose taxonomy is Cultural Dynamics of Mediation, which is to impact both the third tier (Legal Dynamics of Mediation) and the fourth tier (Cross-Border and Cross-Cultural Dynamics of Mediation).

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and within which core, the levels or tonalities of voice,129 which varies neatly and greatly across cultural backgrounds. Such levels or tonalities of voice range from: (i) the level that cares about disputants ‘voice or an individual voice (paradigmatic of cultures of dignity); (ii) the level that conveys group’s voice or a collective voice (prototypical of cultures of face) and (iii) the level indifferent to voice or a silent voice (an archetypical feature of cultures of honour). 3. Springing from an enhanced attention to the cultural differentiation of voice, the disputants must be bestowed upon the procedural opportunity to trot out their side of the story and being afforded a fair treatment by the mediator in both joint mediation sessions and caucuses sessions. No coercion in mediation, be the under the guise of threats, duress, exceedingly or overtly overbearing-directive style of mediation, is to be exerted, much less allowed, in legal dynamics of mediation. If that happens, the disputants should seriously consider withdrawal from either joint mediation sessions or caucuses sessions. Against this background, the grounds for mediator misconduct would be clear insofar belied the integral values underpinning legal dynamics of mediation. Resort to Adaptive Mediation to Match the Disputants’ Cultural Background, Individuality, and Modality of Communication 1. When partaking in mediation sessions in which disputants have markedly different cultural backgrounds, the mediator must consider resort to adaptive mediation.130 The mediator must adapt his/her style of mediation (a central contention of my newly-crafted style of adaptive mediation) to match: (i) the disputants ‘cultural background; (ii) the disputants ‘individuality; and (iii) their modality of communication accordingly. Style of Mediation and the Modality of Communication in Cultures of Dignity: The Mediator Should (Interchangeably and Sometimes Combi-Natively Resort to 129

See: Part 3, Chap. 4, point 4.5.3. to point 4.5.3.1.3. of this book (on the level that cares about the disputants’ voice or an individual voice). See: Part 3, Chap. 4, point 4.5.2. of this book (on the level that conveys group’s voice or a collective voice). See: Part 3, Chap. 4, point 4.5.1. of this book (on the level indifferent to voice or a silent voice). See: Part 3, Chap. 4, point 4.5.3.1. of this book (on the level that cares about disputants’ voice or an individual voice and its drawbacks: Over-optimism, inflated egos, and zero-sum mind-set in mediation settings against the backdrop of which the facilitative, narrative, insight and the transformative style of mediation are the befitted styles of mediation to cultures of dignity). 130 Recall, the fundamental tenets of adaptive mediation, which are tightly interlocked to: (i) the mediator’s adjustment to the cultural differentiation of voice; (ii) the mediator’s adjustment to the concepts of cultural logics of face; cultural logics of dignity; cultural logics of honour; (iii) the mediator’s thrust to yield wealth procedural maximization; (iv) mediator’s adjustment to the harmony-geared consideration; (v) mediator’s thrust to yield long-term harmony-equilibrium; (vi) the mediator’s adjustment to the type of communication held in cross-border and cross-cultural dynamics of mediation; (vii) the mediator’s adjustment to the modalities of communication to be held in cross-border and cross-cultural dynamics of mediation, ranging from low-context and direct style of communication to high-context and indirect style of communication; viii) the mediator’s adjustment to the emic-adaptive concept of culture with a view to yield both wealth procedural maximization and long-term harmony-equilibrium). See: Part 5, Chap. 6 (Cross-Border and CrossCultural Dynamics of Mediation), point 6 to point 6.4.1.5. of this book.

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a) Facilitative, Narrative, Insight, or Transformative Style of Mediation on the Heels of Adaptive Mediation and Adopt a Direct and Low-Context Modality of Communication 1. The mediator should interchangeably (sometimes combi-natively) adopt a facilitative style of mediation whenever the disputants are members of cultures of dignity as their levels of individualism are exceedingly high. The level that cares about disputants ‘voice or an individual voice, as the capstone of, and the zenith of, self-determination and party-autonomy, is the trademark of cultures of dignity as it is premised on the «glorification of the individual». Disputants lend enhanced weight on the treatment they receive from the mediator. Hardly any surprise stems from the fact that voice reaches the higher echelons of sonority in the level that cares about disputants ‘voice. For that reason, disputants tend to adopt a direct and low-context modality of communication. Something that the stellar mediator must never lose sight of. Style of Mediation and Modality of Communication in Cultures of Face: The Mediator Should Resort to a Directive Style of Mediation and Adopt an Indirect and HighContext Modality of Communication 1. As previously stated in cultural dynamics of mediation (Part 3), the exceedingly high values of power distance between public officials and disputants chime in with the role-constrained relational model of authority theory.131 According to this theory, the members of cultures of face do not care a lot about the fair treatment they receive from the authorities.132 Rather, they pay a keen attention to the outcome of the dispute and its impact on the group. I have dubbed this as the external outcome of the dispute for the group. 2. Leveraging on such bodies of empirical evidence, members of cultures of face expect from the mediator an active role. A directive style of mediation. Which is consistent with both the high levels of power distance and with the fact that, in cultures of face, legal officials (like the mediators enrolled in the rosters of a court-connected mediation programs in a given jurisdiction) are placed very high in a rigid social hierarchy. 3. The mediator should pay a keen attention to the assertion view of which voice in cultures of face tend to impart the group’s voice as opposed to the individual’s. The individual echoes the group’s voice. The extremely high values of power

131

Tom R. Tyler/Edgar Allan Lind, “A relational model of authority in groups”, Advances in Experimental Social Psychology, 25, (1992): 115–190; Tom R. Tyler/Edgar Allan Lind, “Procedural justice”, Handbook of law and social science, J. Sanders/V.L. Hamilton (Eds.), New York, Plenum Press, (2001): 65–92 (canvassing the foundations upon which stands the relational model of authority). 132 Tom R. Tyler/Edgar Allan Lind/Yuen J. Huo, “Cultural Values and Authority Relations: The Psychology of Conflict Resolution Across Cultures”, Psychology, Public Policy and Law, 6 (4) (2000): 1138–1163 (on cultural values and authority relations).

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distance and collectivism133 that run through cultures of face,134 in which the individual is often swallowed by the magnitude of the collective, couch the assertion according to which voice reach its mid-level sonority. Hence the taxonomy of level that conveys group’s voice. The directive style of mediation is aimed at offset the lack of sonority of the disputants’ voice. Which, as hinted above, tends to convey a certain group’s voice that echoes the voice of the thread of interlaced relationships that lies beneath. 4. The level that conveys group’s voice sways the manner according to which members of cultures of face behave and communicate in legal dynamics of mediation. Those disputants tend to use an indirect and high-context type of communication135 to convey group’s voice. The mediator (or co-mediator) must be aware of that and adapt his/her style of communication accordingly. Style of Mediation and Type of Communication in Cultures of Honour: The Mediator Should Resort to an Incorporative Style of Mediation, Adopt a Direct and LowContext Type of Communication While Been Keenly Watchful of Insults and Spurn Abusive Language Altogether 1. As previously asserted, the sheer bulk of cultures of honour (ranging to African jurisdictions to South and Central American jurisdictions) are premised on unsteady and shaky social pillars. Abridged social capital, scarce personal empowerment and unbridled corruption spawned a gruesome social reality in view of which party autonomy ranges from null to appallingly tokenistic. Hence my taxonomy of party autonomy tokenisation. 2. Against this background, the mediator must not expect, much less require, heightened party autonomy in either joint mediation sessions or caucuses sessions. It hardly amounts to a bewildering finding that both the dearth of self-empowerment and the paucity of self-determination are trademarks of cultures of honour. The room for procedural imbalances, power imbalances and bargaining imbalances is legion and shows no sign of petering out in the forthcoming future.

133

Geert Hofstede, Cultures and organizations: Software of the mind, New York, NY: McGraw Hill, (1991): passim. Geert Hofstede, Culture’s consequences: Comparing values, behaviours, institutions, and organisations across nations, 2nd edition, Thousand Oaks, CA: Sage, (2001): passim. G.H. Hofstede/M. H. Bond, “The Confucius connection: From cultural roots to economic growth”, Organizational Dynamics, 16, (1988): passim. 134 See: Part 3 (Cultural Dynamics of Mediation), Chap. 4, point 4.3.3. of this book (on the fundamental tenets of cultures of face). 135 In the realm of Anthropology: Edward T. Hall, Silent Language, New York City, Anchor Books, (1973): 1–217; Edward T. Hall, The Hidden Dimension, Anchor Books a Doubleday Anchor Book, New York City, Anchor Books, (1990): 1–240 (on the seminal distinction between direct and lowcontext and indirect and high-context style of communication of paramount importance in Legal Dynamics of Mediation).

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3. In this respect, the mediator’s functional accountability to the Rule of Law is not only duly needed, but utterly expected. Against this background, an incorporative style of mediation136 (as opposed to a narrative, insightful, transformative, evaluative, directive, or facilitative) is in order. The mediator should terminate the mediation sessions while exhorting the weakest disputant in the room to contemplate other dispute resolution mechanisms, which would both ward off the mediator from allegations of misconduct and fend off the fundamental tenets of effective access to justice as an extension of the Rule of Law at the same time. 4. The style of communication of members of honour, like the modality of communication upheld by members of cultures of dignity, tend to be direct and lowcontext. A caveat is in order though. Members of cultures of honour abhor insults. A mediator (a stellar mediator) should pour in a whopping amount of effort in raising a much-needed cultural awareness to cast off both insults and abusive language from joint mediation sessions and caucuses sessions. If that fail to happen, the grounds for mediator misconduct will loom large. Keep Procedural Imbalances, Power Imbalances and Bargaining Imbalances at Bay in Mediation Sessions While Adopting an Incorporative Style of Mediation to Protect the Weakest Disputant in the Room 1. Against the backdrop of the pervasiveness of party autonomy tokenisation in cultures of honour, the mediator must be keenly watchful of procedural imbalances, power imbalances and bargaining power-imbalances displayed in joint mediation sessions. In such cases, the stellar mediator must resort to an incorporative style of mediation to protect the weakest disputant in the room. Keep Party Autonomy Tokenisation at Bay 1. Party autonomy tokenisation is related with the lack of a full-bodied party autonomy and sturdy self-determination. Especially in, but not limited to, cultures of honour. Whenever the mediator comes across disputants that lack a brawny party autonomy as to empower them to make good dispute resolution choices, he should consider terminate immediately the mediation sessions and steer the weakest disputant in the room towards other dispute resolution mechanisms. Irrespective of the cultural background of that disputant. 2. The role of the incorporative advocate is of paramount importance in this regard. One of the most paramount chores that is to be allotted to this new-fangled legal profession is to replace lawyers in mediation sessions and caucuses sessions. Because incorporative mediation does not hinge upon fees of any kind, the bevy of cognitive biases and motivational biases that often arises from lawyers’ agency problems are to be wholly thwarted. 3. Having this backdrop in mind, incorporative advocates must be eagerly watchful of procedural imbalances, power imbalances and bargaining imbalances and urge 136

See: Part 4, this chapter of this book (on the paramount importance of incorporative mediation to cater for the effective access to justice as an extension of the Rule of Law and to quash the gruesome phenomenon of party autonomy tokenisation).

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the mediator to terminate mediation sessions while steering the weakest disputant in the room towards the best procedural avenue. In the absence of which there would be no effective fairness of the procedure from which emerged the mediated settlement agreement to be accounted for, much less to be remarked upon, in this respect. Employ Staggering Efforts to Cast off Both Coercion in Mediation and a Pecuniary Approach to Mediation from Legal Dynamics of Mediation 1. Notwithstanding the foregoing remarks, there are other deep-rooted functional diseases which can hamper the effective access to justice. One of which is the pecuniary approach to mediation in view of which the mediator maximizes the settlement rates (to swell his/her fees) while minimizing disputants ‘underlying rights. The mediator should refrain himself from resorting to a pecuniary approach to mediation or allegations of mediator misconduct will lurk ahead. If the mediator forces the disputants’ hands to clinch a deal with a view to spike (his/her) mediated settlement agreements rates and augment the fees arisen from it (if any), he/she unlawfully crosses the line of coercion in mediation. The grounds for mediator misconduct will draw near. Raise Awareness to Harmony-Geared Consideration During Mediation Sessions 1. My newly-crafted concept of harmony-geared consideration amounts to a willingness for compromising for cultural reasons, which, as hinted above, is truly advantageous to all stakeholders. The sheer bulk of cultures of face137 display a penchant for harmony-geared consideration. In this vein, raising awareness to harmony-geared consideration is a chore that the mediator must embrace while conducting both joint mediation sessions and caucuses sessions. Yet there are limits to be drawn. One of which is the quintessential principle of party autonomy. The mediator must not force disputants’ hands to settle if that runs counter the principle of party autonomy. 2. The second of which is that raising awareness to harmony-geared consideration must not amount to crossing a line from which there is no coming back: coercion in mediation. Raise awareness to harmony-geared consideration is thus far cry from steering disputants through avenues by which they are utterly unwilling to navigate on. 3. In the great bulk of the times raising awareness to harmony-geared consideration amounts to an endeavour that is amenable to be fruit-bearing along the way. Sapid fruits that will be mirrored on the holy-grail of wealth procedural maximization (gains in time, money and overall functionality and credibility of a given system of administration of justice) and long-term harmony-equilibrium (in reshuffling their (in-shambles and in-tatters) relationship, the disputants pave the way to the voluntary compliance with the outcome of the mediated settlement agreement, which will beget wealth procedural maximization). Such newly-crafted

137

See: Part 3, Chap. 4, point 4.3.3. of this book (on cultural logics of face or cultures of face).

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taxonomies draw on, and are umbilically interwoven to, harmony-geared consideration. If the mediator abides by, and complies with, the fundamental tenets of effective fairness of the procedure from which emerged the mediated settlement agreement, there will no grounds for allegations of mediator misconduct whatsoever. 4. Which brings me to the subsequent stage: the effective fairness of the outcome of the mediated settlement agreement. The Effective Fairness of the Outcome of the Mediated Settlement Agreement 1. The effective fairness of the procedure from which emerged the mediated settlement agreement will pave the way to the effective fairness of the outcome of the mediated settlement agreement if: (i) the mediated settlement agreement is fundamentally fair; (ii) the mediator employed his best endeavours to foster long-term harmony-equilibrium (as opposed to short-term harmony-equilibrium) throughout both the joint mediation sessions and caucuses sessions aimed at paving the way to wealth procedural maximization; (iii) the mediator employed his best efforts to yield wealth procedural maximization. The Mediated Settlement Agreement is Fundamentally Fair 1. This requirement is both straightforward and a no-brainer. The mediated settlement agreement must neither contain «excessively disproportionate terms»138 nor be(ing) «unconscionable».139 If that happens for some reason, the mediator has flatly failed to meet, and fell short of matching the fundamental tenets of, the effective fairness of the outcome of the mediated settlement agreement. That fact alone is to warrant functional reproach. Which is to give rise to mediator misconduct. 2. The mediator’s obligation to take heed of, and pay keen attention to, the gist of the mediated settlement agreement is related with the extent to which the former is bound to abide by a functional accountability to the Rule of Law.140 Such obligation to be watchful of the fairness of mediated settlement agreements has little or nothing to do with both opaque fiduciary duties or unshaped contract law principles. Connection that proved detrimental to, and came to the expense of, the interests of plaintiffs in mediator misconduct lawsuits, which has hamstrung and withered away its core.

138

Larry A. DiMatteo/Bruce Louis Rich, “A consent theory of Unconscionability: An empirical Study of Law in Action”, in: Florida State University Law Review, 33 (2006): 1073. 139 The doctrine of unconscionability is in the limelight in the United States of America. The United States Court of Appeals has expressly adopted the doctrine of unconscionability. See, amongst many others judicial decisions: Ohio University Bd of Trs v. Smith, 724, N.E., 2d 1155, 1161 (Ohio Ct. App 1999) and Morrison v. Circuit City Stores, Inc, 313, F3d, 646, 666 (6 th Circ. 2003), available at: https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-cou rts-appeals (access: 28.08.2020). 140 See: Part 4, this chapter, point 5.3.4.1. of this book (on legal officials’ functional accountability to the Rule of law).

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3. The mediator’s obligation to take heed of, and pay a nuanced attention to, the gist of the mediated settlement agreement is hardly a functional obligation towards the disputants themselves. Rather, it is an obligation that draws on, and is tightly interlocked with, the Kantian moral concept of law,141 the procedural understanding of the Rule of Law142 and the functional accountability to the Rule of Law143 : the theoretical underpinnings upon which both the effective access to justice as an extension of the Rule of Law144 and the procedural due process stand. Bereft of which, there is neither effective access to justice nor effective fairness of the outcome of the mediated settlement agreement to be accounted for, much less to be remarked upon, in this respect. The Mediator has Employed his Best Endeavours to Foster Long-Term HarmonyEquilibrium (as Opposed to Short-Term Harmony-Equilibrium) Throughout Both Joint Mediation Sessions and Caucuses Sessions Aimed at Paving the Way to Wealth Procedural Maximization 1. One of the lodestars of, and one of the flagships of, my Four-Tiered Model of Mediation is a sought-after long-term harmony-equilibrium. 2. Up until now, mediation has been tethered to both an interest-based outcome and a rights-based outcome. Whilst some attention has been paid to the multitudinous benefits arisen from the maintenance of the disputants’ relationship, scarce to none attention whatsoever has been paid to the interplay between longterm harmony-equilibrium and wealth procedural maximization. Which, taken together, amount as two linchpins of my Four-Tiered Model of Mediation. 3. Long-term harmony-equilibrium is tightly interlocked to, and boasts ties with, harmony-geared consideration. Harmony-geared consideration resonates with, and encapsulates a, willingness for compromising for cultural reasons. Harmonygeared consideration amounts to a seed of harmony that has been sowed (patiently 141

See: Part 4, this chapter, point 5.3.1. of this book (on the Kantian moral concept of law, one of the philosophical foundations of effective access to justice as an extension of Rule of Law). See: Part 4, this chapter, point 5.3.4. of this book (on Waldron’s procedural approach to the Rule of Law and Lon L. Fuller’s responsible agency, two of the philosophical foundations of effective access to justice as an extension of Rule of Law). See: Part 4, this chapter, point 5.3.2. of this book (on Raz’s legal directives for legal officials to cater for the overall functional credibility of the system of administration of justice, one of the philosophical foundations of effective access to justice as an extension of Rule of Law). See: Part 4, this chapter, point 5.3.3. of this book (on Alexy’s correctness book (which embeds a claim to correctness of/to legal officials) to cater for the overall functional credibility of the system of administration of justice, one of the philosophical foundations of effective access to justice as an extension of Rule of Law). 142 See: Part 4, this chapter, point 5.3.4. of this book (on the paramount importance of fairness against the backdrop of Waldron’s procedural approach to the Rule of Law and Lon L. Fuller’s responsible agency, both of which stand as two of the philosophical foundations of effective access to justice as an extension of Rule of Law). 143 See: Part 4, Chap. 4, point 5.3.4.1. of this book (on the functional accountability to the Rule of Law that both the mediators and the incorporative advocates are bound to abide by to cater for the effective access to justice as an extension of the Rule of Law). 144 See: Part 4, this chapter, point 5.3. to point 5.3.4.1. of this book (on the fundamental tenets of, and theoretical underpinnings of, effective access to justice as an extension of the Rule of Law).

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and diligently) by the mediator throughout both the joint mediation sessions and caucuses sessions. Long-term harmony-equilibrium is the sapid fruit that has ripen further a wide range of fruit-bearing joint mediation sessions and caucuses sessions. Long-term harmony-equilibrium amounts to an optimal stage of mutual understanding that is bound to usher in not only the preservation of the disputants’ relationship, but, and foremost, its overhaul. At this level, there is no coercion in mediation to be accounted for. The same cannot be said regarding short-term harmony-equilibrium, which stands as the polar-opposite of long-term harmonyequilibrium. 4. Short-term harmony-equilibrium often arises out of coercion in mediation. For that reason alone, amounts to an ill-stricken mediated settlement agreement that is bound to stand until the allegations of mediator misconduct find its way to court. No surprise springs from the fact that, in most occasions, the short-term harmony-equilibrium amounts to a pyrrhic victory whose foundations will be challenged in the remit of mediator misconduct soon enough. 5. Inasmuch the mediator has employed his best endeavours to spur longterm harmony-equilibrium throughout the joint mediation sessions and caucus sessions, his functional behaviour is beyond functional reproach. In such cases, long-term harmony-equilibrium paves the way to wealth procedural maximization as several gains in time, money and functional credibility of a given system of administration of justice will tag along. The Mediator Employed His Best Efforts to Yield Wealth Procedural Maximization 1. It hardly amounts to a baffling finding that long-term harmony-equilibrium and wealth procedural maximization are interwoven. Where there is long-term harmony-equilibrium, there is wealth procedural maximization. 2. Long-term harmony-equilibrium bears no resemblance whatsoever with neither of the styles of mediation brought forth in previous sections of this book. For a simple reason. Long-term harmony-equilibrium is not a style of mediation. Long-term harmony-equilibrium stands as one of the linchpins of wealth procedural maximization instead. Unsurprisingly, long-term harmony-equilibrium is not (just) about empowering disputants as to equip them to make good dispute resolution choices. That part must be done at the harmony-geared consideration phase, which precedes long-term harmony-equilibrium. 3. Rather, long-term harmony-equilibrium is the holy-grail (in the remit) of my Four-Tiered Model of Mediation. Drawing on the heels of long-term harmonyequilibrium, the disputants would not only be able to reshuffle their broken relationship, but would also be able to glean the procedural benefits of such a momentous event. So would a given system of administration of justice. Which would equate to wealth procedural maximization of such system of administration of justice. 4. Whenever long-term harmony-equilibrium surfaces, the disputants will be able to align their private interests (solving the ongoing quarrel and morph their shattered relationship in the process) to the public interests (governments’ pristine crave

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to bestow upon disputants an effective access to justice in a streamlined, costeffective, fuss-free, and brisk manner). The long-term harmony-equilibrium is thus squarely aligned with the fundamental tenets of my newly-crafted concept of effective access to justice as an extension of Rule of Law and the Kantian moral concept of law, which comprises both private interests and public interests.145 5.1.4.3

The Three-Pronged Test of Mediator Misconduct and Its Connection to the Two-Pronged Model of the Effective Fairness-Abiding Mediator

1. As hinted above, my two-pronged model of the effective fairness-abiding mediator is aimed at lay down robust and uniform quality benchmarks for mediation amidst a multilateral and multicultural world we live in. If the mediator fails to abide by, and comply with, the fabric of such model he/she is bound to face allegations of mediator misconduct. This is the exact moment at which my three-pronged test of mediator misconduct surfaces. 2. My three-pronged test of mediator misconduct is aimed at gauging the extent to which the mediator abided by, and complied with, both the functional accountability of the Rule of Law146 and the effective access to justice as an extension of the Rule of Law.147 3. It should come as no surprise that the two-pronged model of the effective fairnessabiding mediator and three-pronged test of mediator misconduct are intrinsically linked. In fact, the former is the linchpin of the latter. There would be no need to recourse to the three-pronged test of mediator misconduct if the mediator acted in compliance with the baseline requirements embedded in the two-pronged model of the effective fairness-abiding mediator. 4. Both the two-pronged model of the effective fairness-abiding mediator and threepronged test of mediator misconduct have nothing to do with neither fiduciary duties nor contract law principles148 though. Whilst its validity still stands for other correlated issues, its importance in such regard is next to negligible.

145

See: Part 4, this chapter, point 5.3.1. and passim of this book (on the Kantian moral concept of law, one of the philosophical foundations of effective access to justice as an extension of Rule of Law, which strives to squarely align private interests and general interests). 146 See: Part 4, this chapter, point 5.3.4.1. of this book (on the functional accountability to the Rule of Law). 147 See: Part 4, this chapter, point 5.3. to point 5.3.3. of this book (on the philosophical and theoretical underpinnings of effective access to justice as an extension of the Rule of Law). 148 Art Hinshaw, “Regulating Mediators”, Harvard Negotiation Law Review, 21, (2016): 164–219 (176) (implies that the contract law principles curtail the room for mediator misconduct by stating that it would be difficult for the disputant to «establish that the mediator is responsible for the substance of the agreement outside coercion or fraud») (italics added).

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The Three-Pronged Test of Mediator Misconduct Has the Mediator Shown a Functional Accountability the Rule of Law? 1. The first thing to do is to gauge the extent to which the mediator acted in compliance with the fundamental tenets of effective access to justice as an extension of Rule of Law. The question that the courts must verify is to whether and to what extent the mediator: (i) has shown a functional accountability to the Rule of Law; (ii) provided an effective access to justice as an extension of the Rule of Law to the disputants. Has the Mediator Complied with the Quality Benchmarks Set Forth in the TwoPronged Model of the Effective Fairness-Abiding Mediator? 1. The quality benchmarks set forth in the two-pronged model of the effective fairness-abiding mediator must be mobilized whenever courts are asked to gauge whether the allegations for mediator misconduct are warranted. A compliance with the baseline requirements of the two-pronged model of the effective fairnessabiding mediator would suffice if the circumstances of the case have prevented the mediator from going further than that. Only a case-by-case analysis would afford this exemption of liability (akin to a quasi-judicial immunity) to the mediator or to any other legal official nonetheless. «But-for»-Causation, Burden of Proof and Presumption of Fault: Have the Damages suffered by the Disputants Arisen from Either the Non-settlement or the Mediated Settlement Agreement? 1. Establishing causation and proving damages accounts for an important part of the universe of mediator misconduct. Often the most harrowing one.149 The great bulk of the lawsuits topple in this respect as clear, robust, and agreed-upon acceptable (customary) standards of practice150 range from scarcely to poorly defined.151 The two-pronged model of the effective fairness-abiding mediator aims to plug such a perceived gap in mediator’s misconduct framework thus streamlining the procedure towards recovery or relief in the purview of mediator malpractice claims. 149

Michael Moffitt, “Suing Mediators”, Boston University Law Review, 83 (2003): 185 («incapable of proving that a mediator’s behaviour fell out-of-bounds, an injured party faces little prospect of recovery on these claims»). 150 Id. («many theories of liability require that a complaining party demonstrate that the mediator engaged in behaviour that fell bellow acceptable standards of practice, as defined by customary practice among mediators»). 151 Id. («consumers may have a difficult time understanding the services a particular mediator will or will not provide. Policymakers and academics have a difficult time finding sufficiently comparable practices in order to conduct legitimate evaluative research. Regulators have difficulty crafting rules that have acceptable breadth without undermining the flexibility that is to vital to mediation’s success. (….) The diversity of mediation practice has meant that the boundaries of acceptable practices, the task of defining appropriate and customary practice is more difficult both for mediators and for dissatisfied parties»).

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2. To prove his case, the plaintiff must bring forward facts to premise his claim for mediator’s flagitious behaviour by means of which the former must prove that: (i) the mediator has not shown a functional accountability to the Rule of Law; (ii) the mediator has not complied with the quality benchmarks set forth in the two-pronged model of the effective fairness-abiding mediator. 3. If the plaintiff can prove (i) and (ii), he will be able to prove mediator’s flagitious, and therefore illicit, behaviour. Thereby benefiting from a mediator’s presumption of fault regarding both but-for-causation and damages. In such cases, the mediator must be assigned the burden of proof of thwarting the presumption of fault related to both the but-for-causation and damages. As an upshot, the mediator must prove that there was no «but-for»-causation152 and those damages did not derive from the infringement of neither of the requirements set forth in (i) and (ii), but for reasons other than his/her functional behaviour. Anyway, if the plaintiff proves (i) and (ii), the mediator must prove that the damages suffered by the disputant have neither arisen from the non-settlement nor the mediated settlement agreement. 4. This seismic shift will usher in, and foremost will skyrocket the prospects of, recovery and relief in mediator misconduct lawsuits. The Yardstick to Set Aside the Mediated Settlement Agreements Chimes in with Both the Two-Pronged Model of the Effective Fairness-Abiding Mediator and the Three-Pronged Test of Mediator Misconduct 1. If the mediator’s functional behaviour runs afoul with the two-pronged model of the effective fairness-abiding mediator and (fails) to meet the baseline requirements set forth in the three-pronged test of mediator misconduct, the mediated settlement agreement must be set aside and the apposite relief should be awarded to the plaintiff. Setting Aside the Mediated Settlement Agreement and Granting Relief to Plaintiffs Amounts to Corrective Justice 1. Setting aside mediated settlement agreements and granting relief to plaintiffs for mediation misconduct amounts to corrective justice,153 which lies at heart of the system of individual responsibility that runs through tort law.154 And rightly so. 152

Joseph A. Page, “Causation in European Tort Law: Marta Infantino/Eleni Zervogiani: Book Review”, The American Journal of Comparative Law, 66 (2018): 719 (which amounts to «a test that asks whether the same» misdeed «would have happened if the defendant had behaved reasonably»). 153 E. J. Weinrib, “Corrective justice”, Iowa Law Review, 77 (1992): 403 ff (corrective justice is the encapsulation of the principle according to which there should be fairness in a, an of a, interaction between two individuals) (italics added). 154 J. L. Coleman, Practice of Principle, Oxford, Oxford University Press, (2001): passim (at the heart of the fabric of tort law lies the assertion according to which the tortfeasor or the wrongdoer must be held accountable for the damages inflicted upon the plaintiff).

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«Corrective justice is concerned only with ensuring the fairness of an interaction between two particular actors».155 Which is nothing but the encapsulation of the assertion in view of which courts must grant relief156 to plaintiffs157 whenever there is tortfeasor’s wrongdoing.158 ,159 2. Insofar this assertion is to mark a seismic shift in the breadth and scope of mediator misconduct, is also bound to propel the levels of legal sentiment, and within which core, positive legal-real-feel with the overall functioning of the system of administration of justice. Which should merit nothing but our yearning hope to grasp the chalice of a merits-geared justice in which there is no room for bullies-with-the-robe-of-a-mediator.

5.2 Conclusion §§ 1. Formal access to justice and effective access to justice as an extension of the Rule of Law amount to two of the linchpins of legal dynamics of mediation. Both newly-crafted concepts are bound to sway the sizzling hot topic of mediator misconduct. §§ 2. The sweltering issue of mediator misconduct must be neither tethered to straggled contract law principles nor to opaque fiduciary duties. §§ 3. Rather, the lawsuits regarding mediator misconduct must be subject to the two-pronged model of fairness-abiding mediator coupled with the three-pronged test of mediator misconduct, which, taken together, are amenable to streamline the process of establishing causation and afford redress to plaintiffs, when such relief is due.

155

Jonathan Morgan, “Tort. Insurance and Incoherence”, The Modern Law Review, 67 (3) (2004): 384–401 (392). 156 Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis, New Haven, Yale University Press, (1970): 1–350 (passim) (argues that one of the overriding goals of tort law is award to plaintiff’s justice, fairness, and redress from wrongs). 157 W. J. Blum/H. Kalven, “The Empty Cabinet of Dr. Calabresi—Auto Accidents and General Deterrence”, University of Chicago Law Review, 34 (1967): 268 ff (averring that tort law also pursues the goal of, and resonates with, allaying victim’s feeling of utter indignation). 158 John C. P. Goldberg, “The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of wrongs”, The Yale Law Journal, 115 (3), (2005): 597. 159 Michael D. Green, Comparative Stimulations for Developing Tort Law, Helmut Koziol (ed.), European Centre of Tort Law and Insurance Law, Jan Sramek Verlag, Wien, Austria, (2015): 35 (argues that «one who has harmed by the wrongdoing of another might justifiably appeal to fairness in righting a wrong as the basis for demanding recompense from the wrongdoer») (italics added).

Part V

The Fourth Tier of the Four-Tiered Model of Mediation: Cross-Border and Cross-Cultural Dynamics of Mediation

Chapter 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 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) is to lay the foundations upon which cross-border, complex, and multimillion disputes will stand. 2. Investor-state mediation1 (to which International Trade Law initiatives are often tethered to) is in dire need of being bestowed upon a revamped approach. Being that the one that comprises the assertion according to which there are multiple modernities (as opposed to a Western-inspired single modernity), which must be adopted in bodacious trade initiatives like China’s visionary «One Belt, One Road». To cater to that, the cross-cultural mediators (whom must to embrace an emic-adaptive concept of culture) must be responsive and adaptive to a bevy of cultural backgrounds, a central claim of adaptive mediation. 3. As stated in the second tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation), different cultural backgrounds beg for different approaches to cross-border and cross-cultural mediation. To which the stellar cross-cultural mediator must pay a keen attention to. Such is the rationale

1

Kun Fan, “Mediation of Investor-State Disputes: A Treaty Survey”, Journal of Dispute Resolution, 2020 (2), (2020): 327 ff (on the burgeoning importance of mediation in Investor-State Disputes, drawing upon an in-depth analysis of the various treaties that embed Investor-State Mediation, which, as stated at the Introduction, falls well outside the breadth and scope of this book). Converging: James M. Claxton, “Faithful Friend and Flattering Foe: How Investment Treaties Both Facilitate and Discourage Investor-State Mediation”, (September 11, 2020), (2020): 1 ff, available at: SSRN: https://ssrn.com/abstract (access: 05.10.2020). (on the host of investment treaties that both facilitate and discourage Investor-State Mediation).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_6

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behind the linguistic dimension of adaptive mediation, which must be responsive and foremost adaptive to different modalities of communication. Philosophy of language, Anthropology, Philosophy, and Sociology will prove invaluable to cater to the demonstration of the dire need to be responsive and adaptive to different cultural backgrounds in Cross-border and Cross-Cultural Dynamics of Mediation. 4. Last but not least, the enforcement of cross-border mediated settlement agreements will be canvassed against the background of the Singapore Convention on Mediation within the remit of which both my two-pronged model of fairnessabiding mediator and my three-pronged test of mediator misconduct will play a starring role.

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 1. It is painstakingly difficult to come up with an agreed-upon definition of culture.2 Averring that the topic of culture is a sweltering one hardly amounts to a flabbergasting assertion.3 Acclaimed scholars have asserted that human beings are purveyors of various cultures4 as opposed to a single culture.5 By the same token, populations in an overarching sense are also bearers of a handful of cultures.6 Such stance chimes in, and is squarely aligned to, my approach to cross-border and cross-Cultural Dynamics of Mediation, which is underpinned by, and couched in, the seminal doctrine of «multiple modernities».7 2

Dorcas Quek Anderson/Diana Knight, “Managing the inter-cultural dimensions of a mediation effectively—A proposed pre-mediation intake instrument”, Australasian Dispute Resolution Journal, Volume 28, Part 2, (2017): 89–98 (this excellent piece of research, which I will follow, parses the sizzling hot topic of mediation in cross-cultural settings). 3 Kevin Avruch/Peter W. Black, “The Culture Question and Conflict Resolution”, Peace & Change, Volume 16 (1), (1991): 22 ff (noting that, in spite of the difficulty to outline an agreed-upon definition of culture, culture is not to be bogged down to a mere set of rules and customs). 4 Robert C. Hunt, Beyond Relativism: Rethinking Comparability in Cultural Anthropology, Lanham, Altamira Press, (2007): 22–25. 5 Kevin Avruch, “Type I and Type II Errors in Culturally Sensitive Conflict Resolution Practice”, 20 (3), Conflict Resolution Quarterly, (2003): 351–368 (argues that human beings are carriers- or purveyors—of plenty of cultures). 6 Kevin Avruch, Culture and Conflict Resolution, Washington, D.C., United States Institute of Peace Press, (1998): 1–172 (17–18) (noting that populations in a holistic sense are not amenable to be narrowed down to «a single culture»). 7 S. N. Eisenstadt, “Contemporary Globalization, Intercivilizational Visions and Hegemonies: Transformation of Nation-States, Modernization in Times of Globalization I.”, ProtoSociology: An

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2. One does not have to be a rocket science pundit to know that the very definition of culture8 is not easy to clutch.9 In a bid to grasp such an elusive concept, some scholars went at lengths as to overtly establishing a continuum between culture and a sphere of meaning shared by a cohort of human beings.10 Such sphere of meaning would be shared by a cohort of people11 in a given time span and in a circumscribed geographic boundary.12 Additionally, such a «shared system of meaning»13 would be upheld by the foregoing cohort of people that happen to speak the same language.14 It falls conspicuously beyond the breadth and scope of this book to outline an ultimate definition of culture.15 3. However, gauging the extent to which culture sways international commercial mediation16 lies at the heart of the fourth tier of my Four-Tiered Model of Mediation (Cross-Border and Cross-Cultural Dynamics of Mediation). 4. To that end, anthropologists have made staggering efforts to bring forth an agreedupon notion of culture.17 Yet, despite such a thrust to achieve such a commendable goal, few (if any) palpable results have been yielded so far.18 But that is beside International Journal of Interdisciplinary Research, 26 (2009): 7–18 (contending that we currently live in an age of multiple modernities as opposed to a single western-laden modernity). 8 Lois Gold, “Mediation and the Culture of Healing”, Bringing Peace into the Room, Daniel Bowling/David Hoffman (Editors), San Francisco, Jossey-Bass, (2003): 183 ff (arguing that mediation is amenable to raise awareness—and yield—a culture of reconciliation in dispute resolution settings). 9 Ann Swidler, “Culture in Action: Symbols and Strategies”, American Sociological Review, 51 (2) (1986): 272 ff (this author is of the opinion that culture accounts for a bevy of forms of looking and understanding the world from which each individual builds a string of «lines of action»). 10 Harry Triandis, “Generic Individualism and Collectivism”, The Blackwell Handbook of CrossCultural Management, Martin J. Gannon/K. L. Newman (Editors), John Wiley and Sons, Inc, Hoboken, New Jersey, (2002): 1–509 (15 ff) (on the interplay between individualism and collectivism). 11 Joel Lee/The Hwee Hwee, “Asian Culture: A Definitional Challenge”, An Asian Perspective on Mediation, Singapore, Singapore Academy of Law, Joel Lee/The Hwee Hwee (Editors), (2009): 43–70 (52–67) (noting that culture casts on the long shadow of a shared heritage). 12 Harry Triandis, “Generic Individualism and Collectivism”, cit.: 15 ff. 13 Id. 14 Id. 15 Joel Lee, “Culture and its Importance in Mediation”, Pepperdine Dispute Resolution Law Journal, Volume 16, (2016): 317 (this author states that «culture is so deeply ingrained within us by the processes of socialization that we often do not realize we are affected by it»). 16 Dominic Busch, “How Does Culture Affect Conflict Mediation? Disentangling Concepts from Theory and Practice”, International and Regional Perspectives on Cross-Cultural Mediation, Dominic Busch/Claude-Helene Mayer/Christian Martin Boness (Editors), Studien zur interkulturellen Mediation (Book 5), Berlin, Peter Lang GmbH, Internationaler Verlag der Wissenschaften, (2009): 1–230 (30–38) (arguing, in crux, that culture impacts conflict mediation). 17 Morgan Brigg/Kate Muller, “Conceptualizing Culture in Conflict Resolution”, Journal of Intercultural Studies, 30 (2), (2009): 122 ff (noting that culture is not a fossilized concept but an ever-evolving one). 18 Emily Jones, Negotiating Against the Odds: A Guide for Trade Negotiators from Developing Countries, London, United Kingdom, Palgrave Macmillan, (2013): 103 (such difficulty is exceled

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the point. Cross-border and Cross-cultural Dynamics’ of Mediation (the fourth tier of the Four-Tiered Model of Mediation) overriding goal is to lay down the foundations upon which multicultural disputes (and the sought-after procedural19 justice20 in cross-border and cross-cultural disputes) will stand. To cater to that, one must shine a fresh light on the literature review regarding the interplay between cross-culturalism and dispute resolution. Chiefly mediation. 6.1.1.1

How Is Culture Being Currently Analysed in the Remit of Cross-Border and Cross-Cultural Dynamics of Mediation Against the Background of a Western-Fraught Ethnocentrism

1. As hinted above, scholars have been floundering with grasping an agreed-upon concept of culture. And for a good reason. Defining culture is neither a seamless nor a straightforward task.21 But one point seems to be certain: culture impacts the unfolding of mediation.22 With this backdrop in mind, it should not come as a befuddling surprise that scholars have not been sluggish when it comes to canvassing the interplay between culture and dispute resolution23 and, within which core, mediation. 2. Such a thrust to parse the link between culture and dispute resolution is not without some drawbacks though. Amongst which stands a to-be-frowned-upon

by the «the unique character of a social group—the values and norms shared by its members (that) set it apart from other groups»). 19 Jacob Bercovitch, Theory and Practice of International Mediation (Security and Conflict Management), London, Routledge, (2014): 29 ff and passim (arguing that «effective mediation requires consent, high motivation and active participation», the hallmark of procedural justice and procedural fairness). 20 See: Nancy Welsh, “Remembering the Role of Justice in Resolution; Insights from Procedural and Social Justice Theories”, Journal of Legal Education, 54, (2004): 48 ff (on the paramount importance of procedural justice in mediation settings). 21 Jeswal W. Salacause, “Ten Ways that Culture Affects Negotiating Style: Some Survey Results”, Negotiation Journal, 14 (1998): 221–240 (222–225) (argues that «the great diversity of the world’s cultures make it impossible for any negotiator, no matter how skilled and experienced, to understand fully all the cultures»). 22 Id. (this author has relied upon a body of empirical evidence of over 300 persons from twelve jurisdictions (ranging from Spain to India) to couch the claim that culture have a profound impact on the unfolding of dispute resolution, especially in negotiation). 23 Dorcas Quek Anderson/Diana Knight, “Managing the inter-cultural dimensions of a mediation effectively—A proposed pre-mediation intake instrument”, cit.: 89–98 (87 ff).

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ethnocentrism. Ethnocentrism24 (a scourge arisen from excessive-individualismturned-into-excessive-optimism,25 which is often associated to masculinebusiness-laden societies,26 like the United States of America and beyond27 ) is in dire need of quashing. To cater to that, a far-reaching program of grassroot mediation education28 to hamstring such a penchant for ethnocentrism29 in the remit of cross-border and cross-Cultural Dynamics of Mediation must be launched worldwide. 3. Against this background, scholars have not refrain themselves from outlining some approaches to culture (and its importance in dispute resolution). One of the most popular ones is the essentialist.30 A revamped approach is utterly needed in this regard though.

24

Fons Trompenaars/Charles Hampden-Turner, Riding the Waves of Culture: Understanding Cultural Diversity in Global Business, 3rd edition, San Francisco, McGraw-Hill Education, (2012): 1–400 (19 ff and passim) (bemoaning the lack of literature on the hot topic of cultural diversity between players from different cultural backgrounds). 25 Scott R. Peppet, “Contract Formation in Imperfect Markets: Should We Use Mediators in Deals?”, Ohio State Journal on Dispute Resolution, (2002): 360-362 (discussing the drawbacks of overoptimism in mediation settings). 26 Geert Hofstede/G.J. Hofstede/M. Minkov, Cultures and organizations—Software of the mind: Intercultural Cooperation and its Importance for Survival, 3rd edition, San Francisco, McGraw Hill, (2010): 137–186 (premised on the wealth of an extensive body of empirical research, these authors have stated that masculine-business-laden cultures, like in the United States of America, lend considerable weight on culture of recognition and competition, excellence, and on the «I am winner» motto). 27 Daniel Q. Posin, “Mediating International Business Disputes”, Fordham Journal of Corporate & Finance Law, 9, (2004): 448–451 (alluding to the need to overcome cultural issues arisen in the realm of international commercial mediation). 28 See: Victor Fleischer, “Deals: Bringing Corporate Transactions into the Law School Classroom”, Columbia Business Law Review, (2002): 476–495 (478 ff) (pinning down a gap in law schools’ curricula, which tend to pay few to none attention to cross-cultural international commercial mediation. The author defends a «new educational approach» to raise cross-cultural awareness in international commercial mediation). 29 Günther Frankenberg, Comparative Constitutional Studies. Between Magic and Deceit, Elgar Monographs in Constitutional and Administrative Law, Cheltenham, Edward Elgar, (2018): passim (discusses the hazard of falling prey of an academic research fraught with «ethnocentrism»). 30 David Gregory/Jean Harrowing/Bonnie Lee/Lisa Doolitle/Patrick S. O’Sullivan, “Pedagogy as Influencing Nursing Students ‘Essentialized Understanding of Culture”, International Journal of Nursing Education Scholarship, 7 (1), (2010): 29 ff (arguing that a group of people tend to behave and think alike. Thus being the «norm»).

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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 1. Consistent with a law-in-context methodology to which I have alluded to earlier in this book,31 it is my firm conviction that a stellar cross-cultural mediator32 must adopt an emic perspective of culture by contextualizing a given dispute against the backdrop of a given social and cultural context. But that is not all. The stellar cross-cultural mediator, just like the empowered disputants, lies at the heart of both the joint mediation sessions or caucuses. Unlike in the emic-constructivist perspective of culture,33 the stellar cross-cultural mediator and the empowered disputants must share the spotlight of Cross-Border and Cross-Cultural Dynamics of Mediation. 2. The emic-adaptive perspective of culture is consistent with the concept of multiple modernities, to which I will allude to further down in this book.34 The stellar cross-cultural mediator must not lose sight of the fact that cross-border and cross-cultural disputes arisen on the remit of multi-million and complex international commercial mediation against the background of international trade initiatives like «One Belt, One Road» begs for an emic-adaptive perspective of culture accordingly. The emic-adaptive perspective of culture aims to keep westernfraught ethnocentrism in either joint mediation sessions or caucuses sessions at bay. 3. The emic-adaptive perspective of culture means that the cross-cultural mediator must not only contextualize a given dispute against the backdrop of a given social and cultural context, but also adapt to both the disputants’ (unique) individuality and modality of communication. As an upshot, the cross-cultural mediator must abide by, and must comply with, the fundamental tenets of cultural differentiation

31 Part 1, Chap. 1, Introduction, point 1.6.1 of this book (on research methodology and on the importance of the uses of history to premise the assertions made throughout the book: Between a law-in-context methodology and originalism (st) methodology). 32 See John Barkai, “What’s a Cross-Cultural Mediator To Do? A Low-Context Solution for a HighContext Problem”, Cardozo Journal of Conflict Resolution, 10 (2008): 43–45 (on cross-cultural mediation and the importance of a cross-cultural mediator responsive to cultural differences). 33 Dorcas Quek Anderson/Diana Knight, “Managing the inter-cultural dimensions of a mediation effectively—A proposed pre-mediation intake instrument”, cit., 89–98. 34 See: Part 5, this chapter, point 6.4. (on Eisenstadt’s doctrine of multiple modernities, one of foundational basis of my fourth tier of my Four-Tiered Model of Mediation (Cross-Border and CrossCultural dynamics of mediation), which stands in stark contrast with a single-western modernity, fraught with a to-be-abhorred ethnocentrism).

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of voice35 and different levels and tonalities of voice.36 Lest the cross-cultural mediator endeavours to shun the aspect-seeing blindness (Ludwig Wittgenstein) and the experience-blindness (Walter Benjamin), a keen attention must be paid to these newly-crafted concepts. 4. The emic-adaptive perspective of culture is consistent with the fact that different cultural backgrounds beget, and beg for, different approaches to dispute resolution and different modalities of communication, a central claim of adaptive mediation. Which is the reason why Philosophy of Language is so important in the remit of Cross-Border and Cross-Cultural Dynamics of Mediation and, within which core, the linguistic dimension of adaptive mediation.

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) 6.1.3.1

The Linguistic Dimension of Adaptive Mediation

1. With regard to the modalities of communication used by disputants in crossborder and cross-cultural dynamics of mediation, adaptive mediation is also underpinned by the philosophy of language.37 Disputants whom are to partake in cross-border and cross-Cultural Dynamics of Mediation will resort to the modality of communication which is aligned (and associated) to their cultural background. This is crucially important in investor-state mediation. If the disputants come from a culture of face (where the levels of power distance and

35

See: Part 3, Chap. 4, point 4.5. of this book (on the paramount importance of cultural differentiation of voice in the remit of the second tier of my Four-Tiered Model of Mediation, whose taxonomy is Cultural Dynamics of Mediation, which is to impact both the third tier (Legal Dynamics of Mediation and the fourth tier (Cross-Border and Cross-Cultural Dynamics of Mediation). 36 See: Part 3, Chap. 4, point 4.5.3. of this book (on the level that cares about the disputants’ voice or an individual voice). See: Part 3, Chap. 4, point 4.5.2. of this book (on the level that conveys group’s voice or a collective voice). See: Part 3, Chap. 4, point 4.5.1. of this book (on the level indifferent to voice or a silent voice). 37 See Ludwig Wittgenstein, Philosophical Investigations (Translation: G.E.M. Anscombe), Oxford, Basil Blackwell, (1953) (canvassing the foundations of philosophy of psychology while portraying the paramount importance of language as a mechanism of knowledge, meaning and experience).

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collectivism are exceedingly high), they will tend to use a high-context38 ,39 and indirect form of communication. On the opposite pole, if the disputants come from a culture of honour or a culture of dignity (where the levels of power distance are low and levels of individualism are exceedingly high), they will tend to use a low-context and direct modality of communication.40 A Bird’s Eye View on Aspect-Seeing, Meaning-Blindness (Ludwig Wittgenstein) and Experience-Blindness (Walter Benjamin) The Foundational Basis for Both the Linguistic Dimension of Adaptive Mediation and Communicating Culturally and Meaningfully 1. To a certain extent, the connection between the disputants’ cultural background and the modalities of communication does not fall far behind from the concept of aspect-seeing41 and meaning-blindness42 outlined by the polymath German Philosopher of language Ludwig Wittgenstein.43 2. Whilst entering the mind-bendingly, fiddly, and convoluted world of philosophy of language falls beyond the scope of this book, a brief (thumbnail) sketch on some of its key concepts will be provided as to shine light on the captioned 38

Edward T. Hall, Silent Language, New York City, Anchor Books, (1973): 1–217; Edward T. Hall, The Hidden Dimension, Anchor Books a Doubleday Anchor Book, New York City, Anchor Books, (1990): 1–240 (Edward T. Hall is considered to be founding father of the cross-cultural communication. He was one that has laid out the seminal distinction between high-context and low-context communication). 39 John Barkai, “Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution”, Pepperdine Dispute Resolution, 8 (3) (2008): 407–448 (407 ff and passim). Converging: Julia Ann Gold, “ADR Through A Cultural Lens: How Cultural Values Shape Our Disputing Process”, Journal of Dispute Resolution, (2005): 289–298 (298). 40 John Barkai, “Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution”, cit.: 407–448 (407). 41 Ludwig Wittgenstein, Philosophie der Psychologie—Ein Fragment/Philosophy of psychology— A fragment, West Sussex, United Kingdom, Blackwell, (2009): 189–243 (aspect-blindness is the «connection between the concepts of seeing an aspect and of experiencing the meaning of a word»). Philosophie der Psychologie—Ein Fragment/Philosophy of psychology—A fragment corresponds to the formerly known as Part 1I of the Philosophical Investigations. See: Alexander Stern, “The familiar face of a word”: Wittgenstein and Benjamin on the experience of meaning”, European Journal of Philosophy, 26 (2018): 1297–1311, which I have followed (and follow) closely. 42 Alexander Stern, “The familiar face of a word”: Wittgenstein and Benjamin on the experience of meaning”, cit., (noting that «Wittgenstein sees and important analogy between the phenomena like seeing the duck-rabbit as a rabbit and not a duck, and experiencing the word «bank» as referring to a riverbank and not a piggy bank») His interest in the analogy is forms part of a concern held in the late stages of the Investigations and later academic writings with the relationship between linguistic experience (in the outer world) and pictorial representations (in the outer world). 43 Ludwig Wittgenstein, Philosophical Investigations (Translation: G.E.M. Anscombe), Oxford, Basil Blackwell, (1953): passim.

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linguistic dimension of adaptive mediation. Likewise, to throw light on the concept of communicating culturally and meaningfully. 3. From the philosophy of language point of view,44 when disputants from a given cultural background resort to a given modality of communication they are complying with, and giving credence to, the quintessential concept of aspectseeing. Ludwig Wittgenstein reckons that the very importance of aspect-seeing lies in its connection with experiencing the meaning of a word.45 Wittgenstein’s interest for aspect-seeing and the meaning of the experience of a word is related with the interplay between linguistic experience and pictorial representations (aesthetic experience collated in the outer world).46 4. Wittgenstein’s theory of aspect-seeing is amenable to be applied in cross-border and cross-cultural dynamics dispute resolution in a negative sense. Whenever disputants are deprived from resorting to the modality of communication associated to their cultural background (be that high-context communication or lowcontext communication), they will be pushed over the corner of aspect-blindness and meaning-blindness. 5. Aspect-blindness means that the disputants would not be able to both recognize47 (and use) their own cultural modality of communication. Meaning-blindness means that disputants would be deprived from the experience of words48 associated to their own cultural style of communication. Experience-blindness49 would not fall far behind from either. The stellar cross-cultural mediator, in 44

S. Kripke, Wittgenstein on Rules and Private Language: An Elementary Exposition, Cambridge, Massachusetts, Harvard University Press, (1982): passim (canvassing the foundations of Wittgenstein’s Philosophy of Language aimed at coaxing the «audience» (in Chaim Perelman’s stance—my take) on its merits and demerits). 45 Alexander Stern, “The familiar face of a word”: Wittgenstein and Benjamin on the experience of meaning”, cit.: 1297–1311 (1297). 46 Id. 47 Id. at 1301. 48 Ludwig Wittgenstein, Philosophie der Psychologie—Ein Fragment/Philosophy of psychology— A fragment, cit.: 189–243 (Wittgenstein contends that meaning-blindness begets ambiguity thus hindering the meaningful use of language as he wonders «what would someone be missing if he did not experience the meaning of a word? What would someone be missing, who, for example, did not understand the request to pronounce the word “till” and to mean it as a verb—or someone who did not feel that a word lost its meaning for him and became a mere sound if it was repeated ten times over?») (italics added). Alexander Stern, “The familiar face of a word”: Wittgenstein and Benjamin on the experience of meaning”, cit.: 1297–1311. 49 In German language, Walter Benjamin, “Fragmente zur Sprachphilosophie und Erkenntniskritik”, R. Tiedemann/H. Schwepphauser (Eds.), Gesammelte Schriften, Vol. 6, Frankfurt am Main, Germany, Suhrkamp, (1985): 9–53 (15–16) (for Benjamin the word itself must be (is) «expressive in the maximum» with a «empirically forward-reaching, grinning appearance of meaning»). See also: Walter Benjamin, “On language as such and the language of man”, Selected Writings, Vol. 1, Cambridge, Massachusetts, United States of America, Belknap, (1996): pp. 62–74 (63 ff) (Benjamin conceives language as «medium» as opposed to a «means». In his view, words are purveyors of both meaning and experience. They seek to impart meaningful aspects which comprises presence and foremost experience) (italics added). See also: Alexander Stern, “The familiar face of a word”: Wittgenstein and Benjamin on the experience of meaning”, cit.: 1297–1311.

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embracing the emic-adaptive concept of culture, must not lose sight of the linguistic dimension of adaptive mediation. 6. In such cases, the cultural-fraught meaning of words (associated to each «cultural style of communication») would be lost and devoid of cultural meaning to disputants in Cross-Border and Cross-Cultural Dynamics of Mediation. As an upshot, the disputants would not be offered the opportunity to communicate culturally and meaningfully. Conversely, the linguistic dimension of adaptive mediation in Cross-Border and Cross-Cultural Dynamics of Mediation would be sapped in the process. Bearing this assertion in mind, the linguistic dimension of adaptive mediation must be respected in Cross-Border and Cross-Cultural Mediation settings and Investor-State Mediation settings.

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 6.1.4.1

Principle of Identity; Principle of Differentiation; Principle of Preservation; Principle of Prohibition of Ethnocentrism; Principle of Harmony-Geared Consideration: Introduction

1. As previously seen, multiple modernities is a concept that comprises not only the structural evolution, but also the structural legal evolution.50 Which means that the concept of multiple modernities stamps out the warped (if not doctored and tampered with) assertion in view of which global modernity derives from the West alone.51 Such an ethnocentric and single-social-pattern must be quashed as fails to capture the multiplicity of societal structures52 amidst the boundless and globalised world we live in. 2. Bearing this backdrop in mind, multiple modernities theory is amenable to be a both a benchmark and a yardstick to the principles of adaptive mediation in 50

S. N. Eisenstadt, “The First Multiple Modernities: Collective Identity, Public Spheres and Political Order in the Americas.”, Globality and Multiple Modernities: Comparative North American and Latin Perspectives, L. Roniger/C. H. Waisman (Ed.), Brighton, United Kingdom, Portland, OR, Sussex Academic Press, (2002): 7–28 (on the multiple modernities concept). 51 Werner Krawietz, “Apology for the Theory of the State and Law: A New Concept of Law and Justice in Modern Legal Communication”, Ratio Juris, 31 (4), December 2018, (2018): 421–427 (422–423 ff passim). 52 S. N. Eisenstadt, “Multiple Modernities: A Paradigm of Cultural and Social Evolution”, ProtoSociology: An International Journal of Interdisciplinary Research, 24 (2007): passim (resorting, again, to the concept of multiple modernities as opposed to a single modernity one).

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cross-border and cross-cultural dynamics of mediation. This is not to say that adaptive mediation is to be bogged down to that sort of disputes though. There are also cross-cultural dynamics of mediation in domestic disputes in which its validity still stands. 3. The foundational principles of adaptive mediation also draw on the concept of analytics of power (Foucault)53 ; the theory of self-organizing rules, regulations, and social practices (culture), which are spontaneous and free from any constraint (Durkheim); the concept of aspect-seeing (Wittgenstein) and the concept of experience-blindness (Benjamin). The Principle of Identity and Its Link with Both Incorporative Mediation and Equal Access to Procedural Action 1. The principle of identity is related with the uniqueness of a given culture. Every culture draws on a set of self-organizing rules, regulations and social practices (culture) that are spontaneous and free from any constraint, just like Émile Durkheim asserted.54 2. This cultural identity must be respected by the stellar cross-cultural mediator and all participants partaking in cross-border and cross-cultural dynamics of mediation. The uniqueness of each country (and of the cultural background in which it sits) must be neither disrespected nor besmeared in mediation sessions. The mediator (or co-mediator, the preferable approach in complex, cross-border, and cross-cultural disputes like investor-state mediation) should pay a keen close to cultural identity in investor-state mediation sessions. 3. In this vein, the mediator or the co-mediator is bound to abide by a functional accountability to the Rule of Law.55 Such a functional accountability to the Rule of Law means that both a formal access to justice (equal access to procedural action56 ) and an effective access to justice as an extension of Rule of Law57 must be bestowed upon disputants.

53

Michel Foucault, Discipline and Punish. The Birth of the Prison, London, Allen Lane, (1977): passim; Michel Foucault, “The Subject and Power”, Beyond Structuralism and Hermeneutics, H. L. Dreyfus/P. Rabinow (Ed.), Chicago, Illinois, University of Chicago Press, (1982) (Foucault’s analytics of power states that governments must be free to cooperate with each other as an expression of «action and freedom»). 54 Émile Durkheim, Le Division du Travail (The Division of Social Labor), Anne Rawls (Ed.), Francesco Callegaro/Anne Rawls (Translators), Chicago, Free Press, Paradigm Publishers, (1893) (1933), (2012): passim. 55 See: Part 4 (Legal Dynamics of Mediation), Chap. 5, point 5.3.4.1. of this book (on mediator’s functional accountability to the Rule of Law). 56 See: Part 4 (Legal Dynamics of Mediation), Chap. 5, point 5.2. of this book (on equal access to procedural action, which is tightly interlocked to formal access to justice). 57 See: Part 4, Chap. 5, point 5.3. of this book (on effective access to justice as an extension of the Rule of Law).

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The Principle of Differentiation and Its Link with Both Cultural Differentiation of Voice and the Linguistic Dimension of Adaptive Mediation 1. The principle of differentiation is a bedrock of adaptive mediation. The principle of differentiation is inextricably linked to both the functional dimension of adaptive mediation and linguistic dimension of adaptive mediation. This foundational principle claims for the need to adapt to both disputants’ cultural background and its respective modalities of communication. Not just that though. Both the mediator or co-mediator in investor-state mediation have a functional duty to make sure that the communication channel through which disputants relay their views on the case is culturally aware of the cultural differentiation of voice58 to be used in investor-state mediation sessions. 2. As stated in Chap. 4, cultural differentiation of voice has different levels. Due to the scourge of social exclusion and social inequalities, in cultures of honour voice tend to be a silent voice. This is the level indifferent to voice. At this level, my concept of incorporative mediation and my concept of access to justice as an extension of the Rule of Law are bound to play a pivotal role. Chiefly in buffering both power imbalances and social imbalances. At this level, the mediator and the co-mediator are bound to comply with a functional accountability to the Rule of Law. 3. In cultures of face, voice has an instrumental tonality. The individual’s voice tend to be buffered by the group’s voice and by the thread of relationships that lie beneath. Not only members of cultures of face resort to a high-context and indirect style of communication, but also evince a keen concern with the external outcome of the dispute for the group and the long-term harmony-equilibrium that rests upon it. This is the level that conveys group’s voice. At this level, the mediator must pay close attention to the way members of cultures of face expound their views to avoid cultural misunderstandings. A sizable part of mediator’s task in this regard is to make sure that the other disputants are culturally aware of that too. 4. In cultures of dignity, voice reaches both its full height and full sonority. In cultures of dignity, disputants’ voice embeds their individuality, which is to be cherished by all accounts. Members of cultures of dignity tend to resort to a lowcontext and a direct modality of communication in which individuals exude their views with no filters whatsoever. This is the level that cares about disputants’ voice. Mediator’s main task is to avoid any misunderstandings between members of different cultural backgrounds regarding their style of communication. 5. A mediator (a stellar mediator) must be able to allay the drawbacks arisen from different styles of communication. To circumvent those communication issues, 58

See: Part 3 (Cultural Dynamics of Mediation), Chap. 4, point 4.5. of this book (on cultural differentiation of voice in the remit of the second tier of my four-tiered model of mediation, whose taxonomy is Cultural dynamics of mediation, which, as hinted above, is to impact both the third tier (Legal Dynamics of Mediation and the fourth tier (Cross-Border and Cross-Cultural Dynamics of Mediation).

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the mediator should hold caucuses sessions with each disputant to promote cultural awareness. The Principle of Preservation and Its Connection with Making Cultural Sense Together 1. The principle of preservation in adaptive mediation is to be divided in three layers. The layer of expectation. The layer of cultural respect. And the layer of making cultural sense together. The Principle of Preservation: The Layer of Expectation 1. The layer of expectation is related with the expectation that disputants (whether country or people) hold that both their cultural background and cultural-based communication style will be respected during cross-border and cross-cultural dynamics of mediation. Similarly, the layer of expectation is related with the expectation in view of which the foundational principles of dispute resolution associated to each disputant’s cultural background will be complied with in investor-state mediation sessions. 2. The layer of expectation must not relinquish compliance with the foundational principles of cross-border and cross-cultural dynamics of mediation. As such, the principle of party-autonomy and the principle of self-determination (associated to cultures of dignity and to countries that display high levels of individualism in Hofstede’s cultural dimension) are quintessential in cultures of dignity. Which is consistent with, and gives credence to, my concept of cultural differentiation of voice, whose foundations were laid down in Chap. 4 (Cultural Dynamics of Mediation). 3. Conversely, the principles of self-determination and party autonomy stand as a token of importance of the loudest level of voice (the level that cares about the disputants’ voice). They are closely connected with the both procedural fairness and procedural justice: the more the disputants feel that their voice has been heard in mediation sessions, the higher will be the levels of procedural fairness and procedural justice. In cross-border and cross-cultural dynamics of mediation, disputants who are members of cultures of dignity expect that those paramount principles will be complied with in investor-sate mediation sessions. 4. In cultures of face the layer of expectation works in a markedly different manner. Instead of expecting being steered towards the field of procedural fairness and procedural justice, members of cultures of face expect to achieve a good external outcome of the dispute for the group. This is not to say that those quintessential principles (self-determination and party autonomy) are not important to them. Its just that they get obscured over a long-term orientation that is aimed at preserving the multilateral thread of relationships to which the external outcome of the dispute for the group is considerably more important to. In cross-border and cross-cultural dynamics of mediation, members from cultures of face expect that those paramount principles are abided by in investor-state mediation sessions.

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5. In cultures of honour, the layer of expectation is interwoven to mediator’s functional accountability to the Rule of Law.59 Hence with incorporative mediation. As seen in Chap. 4, scarce social capital and rampant social exclusion begets party autonomy tokenisation against the background of which the principles of self-determination and party autonomy are often wrapped in tokenism. In cross-border and cross-cultural dynamics of mediation, members from cultures of honour expect that party autonomy tokenisation will be either thwarted or allayed in investor-state mediation sessions. The Principle of Preservation: The Layer of Cultural Respect and Its Connection with the Culturally Bespoke Approach to Mediation 1. The principle of preservation boasts (another) paramount corollary: the layer of cultural respect. This layer is related with the best cultural approach to mediation. I have called this a culturally bespoke approach to mediation. The culturally bespoke approach to mediation is one the capstones of adaptive mediation. 2. The principle of preservation and the culturally bespoke approach to mediation are not only about respecting the uniqueness of each culture (like the principle of identity does). Rather, both are aimed at preserving its gist in cross-border and cross-cultural dynamics of mediation from a dynamic point of view. 3. The culturally bespoke approach to mediation must be customized to each investor-state mediation session in cross-border and cross-cultural dynamics of mediation. The mediator or co-mediator must determine the best approach to mediation at the outset of mediation sessions to yield cultural respect. It is not out of question to include anthropologists, psychologists, sociologists or other professionals in cross-border and cross-cultural mediation sessions to yield cultural respect. 4. Holding all else constant, when partaking in cross-border and cross-cultural mediation sessions, disputants must get to clutch the aspect-seeing (Wittgenstein) of a meaning of a word associated to their cultural background. Lest cross-border and cross-cultural dynamics of mediation seeks to avoid the hazard of experienceblindness (Benjamin), a keen attention should be paid to aspect-seeing both joint mediation sessions and caucuses sessions. 5. The culturally bespoke approach to mediation can often entail the use of a vast array of styles of mediation. In an earnest attempt to preserve the gist of each disputant cultural background, the mediator or co-mediators can use a combination of styles of mediation ranging from narrative, adaptive (in cross-border and cross-cultural dynamics of mediation) facilitative, transformative, insight mediation (in cultures of dignity), evaluative or directive (preferably in cultures of face), to incorporative (preferably in cultures of honour). 6. Either way, the culturally bespoke approach to mediation must strive to stamp out coercion in mediation at any cost. The communication channel through which disputants impart their views about their case must be bereft of any coercion 59

See: Part 4 (Legal Dynamics of Mediation), Chap. 5, point 5.3.4.1. of this book (on mediator’s functional accountability to the Rule of Law).

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whatsoever. These are acts of communicative power60 (Habermas), which must be free from any oppression61 or coercion in mediation. The Principle of Preservation: The Layer of Making Cultural Sense Together and Its Link with Both Legal Sentiment (Positive Legal-Real-Feel) and Wealth Procedural Maximization 1. Making cultural sense together presupposes that both the layer of expectation and the layer of cultural respect have been keenly respected. Making cultural sense together seeks to hash out a mediated settlement agreement while maximizing cultural respect. The pinnacle of mediation is not to be bogged down to hammer out a mediated settlement agreement though. Rather, is about reaching a settlement while respecting disputants’ cultural background both in joint mediation sessions and caucuses sessions. If that happens, disputants’ legal sentiment will morph from a state of negative legal-real-feel into a state brimming with positive legal-real-feel to the benefit of a given legal system in an overarching sense. Wealth procedural maximization will tag along. 2. Here lies the connection between legal sentiment (concretely positive legalreal-feel) and wealth procedural maximization. The more disputants feel that their cultural background has been respected in cross-border and cross-cultural dynamics of mediation, the higher their positive legal-real-feel will be. As a result, the likelihood of voluntary compliance with the outcome of the dispute will spike dramatically. The sharp decrease of cases related with the enforcement of cross-border mediated settlement settlements will not lag far behind. The curtailment of court’s dockets and court’s clogged backlogs either. Overburdened courts and overcrowded dockets will slowly become a murky glimpse of the distant past. This is what wealth procedural maximization is (also) about. The Principle of Prohibition of Ethnocentrism and Its Link with Multiple Modernities 1. The principle of prohibition of ethnocentrism draws upon the theory of multiple modernities,62 which encapsulates the axiom according to which there is a wide range of modernities as opposed to a single and Western-based one. Not only mediator or co-mediators have to raise cultural awareness in mediation 60

This concept (communicative power) was originally outlined by Hannah Arendt. See: Hannah Arendt, “On the Concept of Power”, Philosophical-Political Profiles, Cambridge, MIT Press, (1983): 171–188 (later, Habermas would also draw upon Hannah Arendt’s concept of communicative power as an opposition to violence). 61 Jürgen Habermas, The Philosophical Discourse of Modernity, Cambridge, MIT Press, (1987): passim. 62 See: Part 5, this chapter, point 6.4. of this book (on Eisenstadt’s doctrine of multiple modernities, one of foundational basis of my fourth tier of my four-tiered model of mediation (Cross-Border and Cross-Cultural dynamics of mediation), which stands in stark contrast with a single-western modernity, fraught with a to-be-abhorred ethnocentrism).

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sessions, but they should also stamp out the emergence of ethnocentrism63 in cross-border and cross-cultural dynamics of mediation. There is no such thing as a wealth procedural maximization devoid of, and decoupled from, a heightened consideration to multiple modernities in an equal-footed and even-handed manner. The Principle of Harmony-Geared-Consideration and Its Connection with Both Long-Term Harmony-Equilibrium and Wealth Procedural Maximization 1. As shown in Chap. 4, the principle of harmony-geared-consideration is related with the willingness for compromising for cultural reasons in mediation. The foundations upon which such a cultural proclivity to clinch a deal stand have been previously laid down. There is no need to trot out rehashed ideas all over again. 2. Harmony-geared-consideration, being closely related with a propensity to compromise, must be maximized in cross-border and cross-cultural dynamics of mediation. Underpinned by an adaptive approach to mediation, the mediator or co-mediator should raise awareness about the manifold advantages of compromising (which is not be confounded with a directive or evaluative style of mediation) from the preservation of the relationship standpoint. Here lies the paramount importance of long-term harmony-equilibrium, which, as asserted above, is the subsequent stage of harmony-geared consideration. 3. Long-term harmony-equilibrium and wealth procedural maximization are also interlocking concepts. The more disputants contemplate the possibility to compromise, the more wealth procedural maximization will be yielded in crossborder and cross-cultural dynamics of mediation as the hindrances to compromise will be increasingly dispelled. Therefore, paving the way to not only to the reshuffling of disputants’ relationship, but, and foremost, to ushering in a future compliance with the outcome of the mediated settlement agreement. Which would amount to sizable gains in time and money and overall functional credibility in a given jurisdiction: the essence of wealth procedural maximization. 4. Concisely: long-term harmony-equilibrium and wealth procedural maximization are «good as twins» in the remit of my four-tiered model of mediation.

63

Günther Frankenberg, Comparative Constitutional Studies. Between Magic and Deceit, Elgar Monographs in Constitutional and Administrative Law, Cheltenham, Edward Elgar, (2018): passim (on the perils of succumbing to «cognitive cannibalism» and «ethnocentrism»).

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6.1.5 Enforcement of Cross-Border Mediated Settlement Agreements Against the Backdrop of Singapore Convention on Mediation 6.1.5.1

Cross-Border and Cross-Cultural Dynamics of Dispute of Mediation: Enforcement of Mediated Settlement Agreements

Why the End-Game (Enforcement) is so Paramount in Cross-Border and Cross-Cultural Dynamics of Mediation: Introduction 1. One of the propelling forces behind International Trade Law is the yearn to boost the (local or global) economy. Such a propelling force is closely related to the crave for doing business in, and within, a given jurisdiction. Doing business in a given jurisdiction entails both a lavish dose of trust on such economy and the system of administration of justice64 in which the former rests upon. Hardly any surprise springs from the fact that both procedural justice and procedural fairness are deeply woven into the fabric of the enforcement of rights, which is crucially important in the remit of cross-border and cross-Cultural Dynamics of Mediation. 2. Both procedural fairness and procedural justice amount to two of the yardsticks of mediator misconduct to which I have devoted a sizable part of this book.65 The enforcement of cross-border and cross-cultural mediated settlement agreements is thus tightly interlocked with both procedural justice and procedural fairness. Light must be cast upon this segment against the background of which such connection will become clearer (in the remit of the sweltering issue of mediator misconduct) as a ground to gainsay the enforcement a cross-border mediated settlement agreement in light of the earth-shattering Singapore Mediation Convention.

64

Jacqueline Nolan-Haley, “Does ADR’s Access to Justice Come to the Expense of Meaningful Consent”, Ohio State Journal on Dispute Resolution, 33 (2018): 377 (highlights the interplay between economy and justice by saying that courts have a «zeal to relieve congested dockets and reduce business litigation costs»). 65 See: Part 4, Chap. 5, point 5.4.3. to point 5.4.3.3. of this book (on the importance of the threepronged test of mediator misconduct and its connection with the two-pronged model of effective fairness-abiding mediator to cater to the effective access to justice as an extension of the Rule of Law).

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Procedural Justice and Procedural Fairness in the Remit of Enforcement of (Cross-Border and cross-Cultural Dynamics of Mediation and) Mediated Settlement Agreements

Mediator Misconduct: A Brief (Thumbnail) Sketch on the Travaux Préparatoires: Did the Spirit of the Unblemished Mediator Nathaniel Bacon Come Back to Haunt Injudicious Delegations? 1. The grounds for refusal to recognize or to enforce a cross-border mediated settlement agreement for mediator misconduct (art.º 5.º (1) (e) and (f) of Singapore Convention on Mediation) was included in the five-issue deal package deal brought forth by the Israel66 delegation.67 Unlike other grounds for refusal,68 the mediator misconduct is not drawn from the New York Convention.69 Such ground for refusal should be only applied in exceptional circumstances.70 2. The travaux préparatoires elicits the impression according to which some delegations have underscored the paramount importance of the overall fairness of the mediation process.71 Although some delegations have downplayed the importance of defences related to mediator misconduct,72 other delegations have underlined the dire need to include such grounds for refusal to recognize or to enforce a cross-border mediated settlement agreement.73

66

UNCITRAL Audio Recordings, oral intervention of Israel: Working Group II (Dispute Settlement), 66th Session, 7th of February of 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/pub lic/uncitral/speakerslog/2332cbc3-282e-4473-8396-a949d51f011b (access: 10.06.2020). 67 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), pp. 10 ff, available at: https://undocs.org/en/A/CN.9/901 (access: 10.06.2020). 68 UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixty-third Session (Vienna, 7–11 September 2015) (A/CN.9/861) (17th of September of 2015), pp. 16 ff, available at: https://undocs.org/en/A/CN.9/901 (access: 11.06.2020). 69 Natalie Y Morris-Sharma, “Constructing the Convention on Mediation: the Chair Person’s Perspective”, “Constructing the Convention on Mediation: The Chair Person’s Perspective”, Singapore Academy Law Journal, 31 (2019): 511 ff, which I will follow very closely. 70 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-fifth Session (Vienna, 12–23 September 2016) (A/CN.9/896) (30th of September of 2016), pp. 19–21, 32–34 available at: https://undocs.org/en/A/CN.9/896 (access: 11.06.2020). 71 UNCITRAL Audio Recordings, oral intervention of the European Union: Working Group II (Dispute Settlement), 65th Session, 16th of September of 2016, 09:30– 12:30, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/e6cda078-71e2-4108-adab66df99f84fda (access: 11.06.2020). 72 UNCITRAL Audio Recordings, oral intervention of the Mexico, Australia, the United States of America, Singapore, Canada, China, Argentina, and Pakistan: Working Group II (Dispute Settlement), 65th Session, 16th of September of 2016, 09:30–12:30, https://icms.unov.org/CarbonWeb/ public/uncitral/speakerslog/e6cda078-71e2-4108-adab-66df99f84fda (access: 11.06.2020). 73 UNCITRAL Audio Recordings, oral intervention of Germany: Working Group II (Dispute Settlement), 66th Session, 8th of February of 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/pub lic/uncitral/speakerslog/d9977fb46-494f-48c0-878e-225c68ee8745 (access: 11.06.2020).

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3. Some delegations went at lengths as to assert that the (a) mediator is (was) not bound to abide by any duty of impartiality commensurate with, much less tantamount to, an arbitrator.74 Other delegations posited that the situations in which disputants choose a partial mediator abound and are therefore legion.75 Those delegations bore in mind that such a partial mediator may have had previous knowledge of the situation at hand and happened to know one or both the disputants.76 Some delegations, in a spur-of-the-moment, have downsized the importance of caucuses’77 sessions.78 Such a stance is oblivious of the fact that caucuses sessions are on the rise though.79 4. Those delegations got it wrong. This is a situation that boasts close resemblance with the another one briefly broached in Social Dynamics of Mediation. The unblemished mediator Nathaniel Bacon got the sheer bulk of his referrals from people that he already knew or became acquainted with.80 Such a fact has never hindered, much less has ever tarnished, both his iron-clad impartiality nor has 74

UNCITRAL Audio Recordings, oral intervention of International Mediation Institute (IMI): Working Group II (Arbitration and Conciliation), 64th Session, 4th of February of 2016, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/83bbcdba-28c4-4368bab6-e8d17b3fbcb6 (access: 11.06.2020). 75 UNCITRAL Audio Recordings, oral intervention of International Law Association (ILA): Working Group II (Arbitration and Conciliation), 64th Session, 4th of February of 2016, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/83bbcdba-28c4-4368bab6-e8d17b3fbcb6 (access: 11.06.2020). 76 Timothy Schnabel “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, cit.: 50. 77 UNCITRAL Audio Recordings, oral intervention of Mexico: Working Group II (Dispute Settlement), 65th Session, 21th of September of 2016, 14:00–17:00, https://icms.unov.org/CarbonWeb/ public/uncitral/speakerslog/8cdfd2fc-617b-432d-bf9c-98d8abf0d29a (access: 11.06.2020). 78 Lorig Charkoudian/Deborah Thompson Eisenberg/Jamie L. Walker, “What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court”, Conflict Resolution Quarterly, 35 (2017): 7 ff (parses the importance and effectiveness of caucuses in the remit of mediation). 79 Thomas J. Stipanowich, “Insights on Mediator Practices and Perceptions”, Dispute Resolution Magazine, Winter 2016, (2016): 7; Lynne S. Bassis, “Face-to-Face Sessions Fade Away: Why is Mediation’s Joint Session Disappearing?”, Dispute Resolution Magazine, Fall 2014, (2014): 33; Jay Folberg, “The Shrinking Joint Session: Survey Results”, Dispute Resolution Magazine, Winter 2016, (2016): 19; Eric Galton & Tracy Allen, “Don’t Torch the Joint Session”, Dispute Resolution Magazine, Fall 2014, (2014): 25–27 (noting the that usage—thus importance—of joint mediation sessions is petering out while the importance of caucuses sessions is on the rise). 80 The Bacon papers, Volumes I-V provide a nuanced historical account on Nathaniel Bacon’s monumental work as a mediator and arbitrator. Bacon has received the great bulk of his referrals from a wide range of persons. Ranging from laypeople to legal, judicial and political actors that can be summarized as follows: Parliament, King, a myriad of courts (ranging from ecclesiastical courts to regular courts of law), Privy Council, Chancellor (the «Keeper of the King’s Conscience, guardian of equity jurisdiction that tempered the common law», laypeople, and other individuals); John H. Langbein, History of the Common Law: The Development of Anglo-American Legal Institutions, 2nd ed. edition (August 14, 2009), Aspen, United States of America, Series: Aspen Casebook, Aspen Publishers (2009): 271–299 (parsing the utmost importance of Anglo-American legal institutions); Derek Roebuck, Arbitration and Mediation in Seventeenth-Century England in the Middle Ages: England 1154 to 1558, Oxford, Oxford Holo Books: The Arbitration Press (January 22, 2013)

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morphed him into a partial mediator.81 Those delegations could have used some history lessons to filter out such grave misapprehensions. Drilling into, and shine light on, the remarkable Bacon Papers82 would be an auspicious starting point. Mediator Misconduct: Would Individualized (Thus Patchy and Straggled) Standards of Quality Suffice to Strive for Consistency in International Trade Law? The Importance of Cultural Dynamics of Mediation (The Second Tier of the Four-Tiered Model of Mediation) 1. Art.º 5.º (1) (e) and (f) of Singapore Convention on Mediation begs for robust standards of quality83 or binding codes of conduct84 in each jurisdiction.85 Whilst there was an agreed-upon consensus according to which mediators needed to comply with stringent standards of quality86 and codes of conduct,87 there was no avail in reaching common ground on how such standards of quality88 and codes

(2013); Dereck Roebuck, The English Inheritance: What the First American Colonists Knew of Mediation and Arbitration”, Journal of Dispute Resolution, (2016) (1/4), (2016): 325-327. 81 Derek Roebuck, Arbitration and Mediation in Seventeenth-Century England, cit.: passim. 82 Thus far the Bacon papers can be divided as follows: (I) A. Hassell Smith & G. M. Baker (ed.), The Papers of Nathaniel Bacon of Stiffkey, XLVI, Volume I, (1978/1979): 1556–1577 (hereinafter Bacon Papers I); (II) A. Hassell Smith & G. M. Baker (ed.), The Papers of Nathaniel Bacon of Stiffkey, XLIX, Volume II, (1983): 1578–1585 (hereinafter Bacon Papers II); (III) A. Hassell Smith & G. M. Baker (ed.), The Papers of Nathaniel Bacon of Stiffkey, LIII, Volume III, (1990): 1586–1595 (hereinafter Bacon Papers III); (IV) Victor Morgan/Jane Key/Barry Taylor (ed.), The Papers of Nathaniel Bacon of Stiffkey, LXIV, Volume IV, (2000): 1596–1602 (hereinafter Bacon Papers IV); (V) Victor Morgan/Elizabeth Rutledge/Barry Taylor (ed.), The Papers of Nathaniel Bacon of Stiffkey, LXXIV, Volume V, (2010): 1603–1607 (hereinafter Bacon Papers V). 83 Dorcas Quek Anderson, “A matter of interpretation? Understanding and applying mediation standards for the cross-border enforcement of mediated settlement agreements”, Conflict Resolution Quarterly, 2020 (1), (2020): 1–19 (1 ff) (posits that Singapore Convention on Mediation «has elevated the standing of mediation standards from soft regulatory coded to quasi-legal grounds impacting the enforcement of mediated settlements (….) it is therefore imperative that the mediation community find ways to bridge frames and facilitate the cross-border understanding of standards»). 84 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-seventh Session (New York, 2–6 February 2017) (A/CN.9/929) (11th of October of 2017), pp. 15 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). 85 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), pp. 8 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). 86 UNCITRAL Audio Recordings, oral intervention of Israel: Working Group II (Dispute Settlement), 66th Session, 7th of February of 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/pub lic/uncitral/speakerslog/2332cbc3-282e-4473-8396-a949d51f011b (access: 11.06.2020). 87 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), pp. 8 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). 88 Natalie Y Morris-Sharma, “Constructing the Convention on Mediation: the Chair Person’s Perspective”, Singapore Academy Law Journal, 31 (2019): 512 ff and passim.

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of conduct should (internationally) look like89 : should there be a sole and square reliance on the fair treatment drawn from arbitration?90 Would such reliance amount to unduly narrowing down the breadth and scope of this defence91 ? 2. Whereas the Working Group II reckoned that the centre of mediation is the disputants92 as opposed to the mediator,93 I reckon that such a stance creates more problems than it solves. The centre of mediation must be polarized on, and divided by, both the disputants and the mediator instead. Absent such bipartisation, the sizzling hot topic of mediator misconduct would be wrapped in tokenism. 3. To the extent that all too often the issue of mediator misconduct sullies crossborder mediated settlement agreements,94 the delegations considered that egregious breaches of deep-rooted and established standards of quality should warrant to the aggrieved disputant the unassailable right to claim a refusal to enforce such agreements.95 In an earnest attempt to avoid setting unconquerable standards that would be impossible to meet, the delegations considered that such threshold should neither be too high nor too low.96 Such is the propelling force behind the

89

UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-fifth Session (Vienna, 12–23 September 2016) (A/CN.9/986) (30th of September of 2016), pp. 32 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). 90 UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixty-third Session (Vienna, 7–11 September 2015) (A/CN.9/861) (17th of September of 2015), pp. 16 ff, available at: https://undocs.org/en/A/CN.9/901 (access: 11.06.2020). 91 UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixtythird Session (Vienna, 7–11 September 2015) (A/CN.9/861) (17th of September of 2015), pp. 16 ff, available at: https://undocs.org/en/A/CN.9/901 (access: 11.06.2020). See also: UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-fifth Session (Vienna, 12–23 September 2016) (A/CN.9/986) (30th of September of 2016), pp. 33 ff, available at: https://undocs. org/en/A/CN.9/861 (access: 11.06.2020). 92 UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixty-fourth Session (New York, 1–5 February 2016) (A/CN.9/867) (10th of February of 2016), pp. 27 ff, available at: https://undocs.org/en/A/CN.9/901 (access: 11.06.2020). 93 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), pp. 14 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixty-third Session (Vienna, 7–11 September 2015) (A/CN.9/861) (17th of September of 2015), pp. 17 ff, available at: https://und ocs.org/en/A/CN.9/901 (access: 11.06.2020). 94 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), pp. 15 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). 95 Natalie Y Morris-Sharma, “Constructing the Convention on Mediation: the Chair Person’s Perspective”, cit.: 512 ff and passim. 96 Natalie Y Morris-Sharma, “Constructing the Convention on Mediation: the Chair Person’s Perspective”, cit.: 512 ff and passim.

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seriousness97 of the breaches98 of either the applicable standards99 of quality or codes of conduct,100 bereft of which the disputant would not have entered into the cross-border mediated settlement agreement (art.º 5.º (1) (e) of Singapore Convention on Mediation). 4. This brief (thumbnail sketch) on the travaux préparatoires has evinced both a much-needed Cultural Dynamics of Mediation and a pressing need to set forth uniform international quality standards to avoid interpretative fluctuations in domestic courts. To cater to that, the interplay between the two-pronged model of the effective fairness-abiding mediator and the three-pronged test of mediator misconduct is of acute significance. Mediator Misconduct: The Interplay Between the Two-Pronged Model of the Effective Fairness-Abiding Mediator and the Three-Pronged Test of Mediator Misconduct 1.

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Whilst the rationale behind the creation of the foregoing grounds for refusal to enforce a mediated settlement agreement arisen from mediator’s misconduct merits unfettered plaudits, the delegations have failed to account for the cultural differentiation of voice101 and for the different levels and tonalities of the principle of self-determination and voice102 across jurisdictions though. Cultural dynamics of mediation,103 coupled with the interplay between my twopronged model of the effective fairness-abiding mediator and my three-pronged test of mediator misconduct, is amenable to capture the pith of, and to set

UNCITRAL Audio Recordings, oral intervention of Israel: Working Group II (Dispute Settlement), 66th Session, 7th of February of 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/pub lic/uncitral/speakerslog/2332cbc3-282e-4473-8396-a949d51f011b (access: 11.06.2020). 98 Natalie Y Morris-Sharma, “Constructing the Convention on Mediation: the Chair Person’s Perspective”, cit.: 513 ff. 99 UNCITRAL Audio Recordings, oral intervention of Corporate Counsel International Arbitration Group (CCIAG): Working Group II (Dispute Settlement), 66th Session, 7th of February of 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/2332cbc3-282e-44738396-a949d51f011b (access: 11.06.2020). 100 UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), pp. 14 ff, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). 101 See: Part 3, Chap. 4, point 4.5. of this book (on the paramount importance of cultural differentiation of voice in the remit of the second tier of my Four-Tiered Model of Mediation, whose taxonomy is Cultural dynamics of mediation, which is to impact both the third tier (Legal Dynamics of Mediation and the fourth tier (Cross-Border and Cross-Cultural dynamics of mediation). 102 See: Part 3, Chap. 4, point 4.5.3. of this book (on the level that cares about the disputants’ voice or an individual voice). See: Part 3, Chap. 4, point 4.5.2. of this book (on the level that conveys group’s voice or a collective voice). See: Part 3, Chap. 4, point 4.5.1. of this book (on the level indifferent to voice or a silent voice). 103 Part 3 of this book.

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3.

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out robust and sturdy international quality standards to the issue of, mediator misconduct.104 Taken together, both would yield consistency and legal certainty as such benchmarks are responsive and sensitive to all legal cultures and underlying cultural backgrounds. As previously stated, my two-pronged model of the effective fairness-abiding mediator is aimed at laying down quality benchmarks for mediation amidst a multilateral and multicultural world we live in. If the mediator fails to abide by, and comply with, the baseline requirements of such model he/she is bound to face allegations of mediator misconduct. This is the exact moment in which my three-pronged test of mediator misconduct steps in. My three-pronged test of mediator misconduct aims to gauge the degree to which the mediator abided by, and complied with, the functional accountability of the Rule of Law105 and by the effective access to justice as an extension of the Rule of Law.106 Hardly any surprise springs from the fact that the two-pronged model of the effective fairness-abiding mediator and three-pronged test of mediator misconduct are tightly interlocked. As hinted above, the former is the linchpin of the latter. There will be no need to recourse to the three-pronged test of mediator misconduct if the mediator acted in compliance with, and abided by, the two-pronged model of the effective fairness-abiding mediator. Both the two-pronged model of the effective fairness-abiding mediator107 and three-pronged test of mediator misconduct108 have nothing to do with both opaque fiduciary duties and unshaped, straggled and patchy contract law principles.109 What does the three-pronged test of mediator misconduct stand for? It can be summarized as follows: (I) Has the mediator shown a functional accountability the Rule of law? (II) Has the mediator complied with the quality benchmarks set forth in the two-pronged model of the effective fairness-abiding mediator? (III) «But-for»-causation, burden of proof and presumption of fault: have the damages (if any) suffered by the disputant arisen from the decision to hammer

See: Part 4, Chap. 5, point 5.4.2.1. to point 5.4.3.3. of this book (on the importance of the threepronged test of mediator misconduct and its connection with the two-pronged model of effective fairness-abiding mediator to cater for the effective access to justice as an extension of the Rule of Law). 105 See: Part 4 (Legal Dynamics of Mediation), Chap. 5, point 5.3.4.1. of this book (on the functional accountability to the Rule of Law that the stellar mediator must abide by). 106 See: Part 4, Chap. 5, point 5.3. to point 5.3.4. of this book (on the fundamental tenets of effective access to justice as an extension of the Rule of Law). 107 See: Part 4, Chap. 5, point 5.4.2.1. of this book (on the two-pronged model of effective-fairness abiding mediator). 108 See: Part 4, Chap. 5, point 5.4.3. of this book (on the three-pronged test of mediator misconduct). 109 Art Hinshaw, “Regulating Mediators”, Harvard Negotiation Law Review, 21 (2016): 164–219 (176) (implies that the contract law principles curtail the room for mediator misconduct by stating that it would be difficult for the disputant to «establish that the mediator is responsible for the substance of the agreement outside coercion or fraud»). Italics added.

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out a cross-border mediated settlement agreement, from which he would not have entered if he had known either the mediator misconduct or if the egregious breach had not occurred? 8. As also hinted above, establishing causation and proving damages amounts to an important part of the universe of mediator misconduct. Often the most harrowing one.110 Most of the lawsuits flounder in this regard as agreed-upon acceptable (customary) standards of practice111 range from scarcely to poorly defined.112 The two-pronged model of the effective fairness-abiding mediator aims to plug that perceived gap in mediator’s misconduct legal framework therefore streamlining the procedure towards recovery or relief on such malpractice claims.113 9. To prove his case, the plaintiff must bring forth facts to support his claim for mediator’s flagitious behaviour by means of which the former is to prove that: (i) the mediator has not shown a functional accountability to the fabric of Rule of Law; (ii) the mediator has not complied with the quality benchmarks set forth in the two-pronged model of the effective fairness-abiding mediator. 10. If the plaintiff manages to prove (i) and (ii), he will be able to prove the mediator’s flagitious, and therefore illicit, behaviour. Thereby, benefiting from a mediator’s presumption of fault regarding both but-for-causation and damages. In such cases, the mediator must be ascribed the burden of proof of quashing the presumption of fault related to both the but-for-causation and damages. Failure to Disclose to the Disputant Circumstances that Besmirch Mediator’s Impartiality or Independence Without Which Failure the Plaintiff Would Not Have Entered into the Mediated Settlement Agreement The Need for an Adapted Version of the Three-Pronged Test of Mediator Misconduct 1. Article 5 (1) (f) of the Singapore Convention on Mediation has laid down a ground for refusal to recognize or enforce a mediated settlement agreement 110

Michael Moffitt, “Suing Mediators”, cit.: 185 («incapable of proving that a mediator’s behaviour fell out-of-bounds, an injured party faces little prospect of recovery on these claims»). 111 Id. («many theories of liability require that a complaining party demonstrate that the mediator engaged in behaviour that fell bellow acceptable standards of practice, as defined by customary practice among mediators»). 112 Id. («consumers may have a difficult time understanding the services a particular mediator will or will not provide. Policymakers and academics have a difficult time finding sufficiently comparable practices in order to conduct legitimate evaluative research. Regulators have difficulty crafting rules that have acceptable breadth without undermining the flexibility that is to vital to mediation’s success. (….) The diversity of mediation practice has meant that the boundaries of acceptable practices, the task of defining appropriate and customary practice is more difficult both for mediators and for dissatisfied parties»). 113 See: Part 4, Chap. 5, point 5.4.2. to 5.4.2.1. of this book (on the importance of the two-pronged model of effective fairness-abiding mediator to cater to the effective access to justice as an extension of the Rule of Law).

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related with mediator’s impartiality. According to which the failure to disclose to the disputants circumstances that besmirch mediator’s impartiality or independence without which failure the plaintiff would not have entered into the mediated settlement agreement warrants the refusal to enforce such mediated settlement agreement. 2. This ground for refusal bear close resemblance with the case Lehrer in which the plaintiff argued that the mediator had failed to vouchsafe a pre-existing professional liaison with the opposing lawyer.114 However, just like in Lehrer, if the aggrieved disputant was fully aware of circumstances that were susceptible of, and amenable to, cast doubts on mediator’s lack of impartiality115 and independence116 and decided to enter the mediated settlement agreement nonetheless, this ground for refusal117 should not be applicable.118 3. Whereas the ground for refusal set forth in Article 5 (1) (e) of the Singapore Convention on Mediation is different from the ground for refusal laid down in Article 5 (1) (f) of the Singapore Convention on Mediation, the validity of my twopronged model of effective fairness-abiding mediator and my adapted version of three-pronged test of mediator misconduct still stands. 4. How should the adapted version of three-pronged test of mediator misconduct look like? It reads as follows: (I) Has the mediator shown a functional accountability to the Rule of law? (II) Has the mediator complied with the quality benchmarks set forth in the two-pronged model of the effective fairness-abiding mediator? (III) «But-for»-causation, burden of proof and presumption of fault: have the damages (if any) suffered by the disputant arisen from an undue influence that spawned the decision to hammer out a cross-border mediated settlement agreement, from which he would not have entered if he had known the mediator’s lack of impartiality, independence, or any sort of conflict of interest alike? 114

The Texas Court of Appeals stated that «Appellant contended that the three defendants did not notify him or the court that (1) the opposing counsel had a pre-existing professional relationship with Zwernemann». Lehrer v. Zwernemann, 14 S. W.3d 775, Texas Court of Appeal (Tex. App. 2000), available at: https://caselaw.findlaw.com/tx-court-of-appeals/1125670.html (access: 12.06.2020). 115 UNCITRAL Audio Recordings, oral intervention of International Academy of Mediators (IAM) and the Forum for International Conciliation and Arbitration (FICA): Working Group II (Dispute Settlement), 66th Session, 10th of February of 2017, 10:00–13:00, https://icms.unov.org/Carbon Web/public/uncitral/speakerslog/f61927a-e928-400e-b6d0-08b213c54710 (access: 12.06.2020). 116 The Texas Court of Appeals held that «it is apparent that appellant had, at a minimum, constructive knowledge of the prior professional relationship before the mediation took place. In his own case against appellant, the opposing counsel stated by affidavit that, before the mediation, he informed Supkis that he and Zwernemann had been involved in numerous legal matters». See: Lehrer v. Zwernemann, 14 S. W.3d 775, Texas Court of Appeal (Tex. C. App. 2000), available at: https://cas elaw.findlaw.com/tx-court-of-appeals/1125670.html (access: 12.06.2020). 117 Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the CrossBorder Recognition and Enforcement of Mediated Settlements”, Pepperdine Dispute Resolution Law Journal, 19 (2019): 4 ff, which I have (and will) follow closely. 118 UNCITRAL Audio Recordings, oral intervention of Canada, Israel, and Germany: Working Group II (Dispute Settlement), 66th Session, 8th of February of 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/d977fb46-494f-48c0878e-225c68ee8745 (access: 12.06.2020).

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6.2 Conclusion §§ 1. In a bid to adroitly address the manifold challenges arisen from the breadth and scope of this variegated and multicultural world we live in, the stellar crosscultural mediator must embrace an emic-adaptive concept of culture. §§ 2. The stellar mediator must bear very firmly in mind that different cultural background begets and breeds: (i) different styles of communication; (ii) different ways to trot out and expound one’s side of the story; (iii) different ways of seeing the world to which adaptive mediation, which derives from the emic-adaptive concept of culture, must be adaptive and ultimately (and keenly) responsive to. §§ 3. There is no such thing as the overall functionality of the fourth tier of the FourTiered Model of Mediation (Cross-Border and Cross-Cultural Dynamics of Mediation) devoid of, and detached from, a full-fledged and sturdy legal framework amenable to enforce cross-border mediated settlement agreements. A perceived gap that the Singapore Convention of Mediation has bridged. §§ 4. Although one must be nothing but both chuffed and elated at the enactment of Singapore Convention of Mediation, this international legal framework is not without shortcomings and drawbacks. Amongst which stands the overreliance on piecemeal and scattered contract law principles and opaque fiduciary duties to halt the enforcement of the cross-border mediated settlement agreement. Here lies the importance of the interplay between the second tier (Cultural Dynamics of Mediation) and the fourth tier of the Four-Tiered Model of Mediation (CrossBorder and Cross-Cultural Dynamics of Mediation). §§ 5. Which begs the question: in the event of mediator misconduct, would individualized (thus patchy and straggled) standards of quality suffice to strive for consistency in International Trade Law? The answer is a resounding «no». §§ 6. To ensure adaptability (and foremost responsiveness) to both the legal culture and to the underlying cultural background of each jurisdiction signatory to the Singapore Convention on Mediation, the emic-adaptive judge must adopt the twopronged model of fairness-abiding mediator coupled with the three-pronged test of mediator misconduct. §§ 7. In so doing, several gains in time, money and overall functionality of the International Trade Law will be yielded and spelt over a given jurisdiction. The sought-after wealth procedural maximization, one of the flagships of my fourtiered model of mediation, will tag along and follow suit.

Chapter 7

Conclusions

§§ 1. The first tier of my Four-Tiered Model of Mediation (Social Dynamics of Mediation) amounts to a linchpin that melds the past (with a view to the glean the wisdom of the old) and the future (with a view to wide-open the hallowed window of the new). This assertion lies at the heart of the first tier of the four-tiered model of mediation. §§ 2. The newly-crafted concept of Social Sub-Systems in Permanent Interaction or Cross-Fertilization chimes in, and is consistent with, the finding according to which Luhmann’s social sub-systems have communicated (and therefore have cross-fertilized) with each other permanently throughout most of the legal history. §§ 3. To support such a momentous claim, I have undertaken an in-depth historical account on how mediation and arbitration unfolded in: (i) Macau and (ii) AngloSaxon England. §§ 4. Such a fine-grained historical account has unearthed (and therefore has uncovered) rather gripping findings. The first of which is that not only Luhmann’s social sub-systems have interacted permanently (and therefore have crossfertilized) with each other throughout the vast swathes of history (and for) a long-winded span of time, but, to a certain degree, a bevy of social sub-systems (like culture, philosophy and religion) have shaped other social sub-systems (law and mediation). §§ 5. Macau’s unique two-layered law and social reality stands as an archetypical example of the plausibility of my concept of social sub-system in permanent interaction or in a constant state of cross-fertilization. §§ 6. With regard to Anglo-Saxon England, the quintessential concept of penitential justice set forth by Roman Catholic Church in Anglo-Saxon England was the forebear of the much-acclaimed UK Woolf reforms of 1999 as far as the imposition of costs to disputants unyielding and unwilling to contemplate mediation in good faith is concerned, which is to cast doubts on its novelty. §§ 7. The Roman Catholic Church in Anglo-Saxon England laid down the foundations upon which stood a mesmerizing (to some extent tantalizing) multi-layered

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6_7

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dispute resolution framework which bore a close resemblance with the hackneyed (even threadbare) multidoor courthouse idea brought forth by Professor Frank Sander at the much-acclaimed Pound Conference of 1976, which is (also) to cast doubts on its novelty. §§ 8. My concept of Social Sub-Systems in Permanent Interaction or in Constant State of Cross-Fertilization encounter plausibility on the interplay between the first tier (Social Dynamics of Mediation) and the second tier of my Four-Tiered Model of Mediation (Cultural Dynamics of Mediation), the foundations upon which stand my newly-crafted concepts of: (i) social crystallization; and (ii) social synthesis. §§ 9. Leveraging on the fine-grained historical research undertaken in Part II (Social Dynamics of Mediation), social crystallization amounts to a crystallization of the interaction between two social sub-systems (ranging from culture, religion, society, economics, politics, philosophy, law, and dispute resolution) in a given time period and a given jurisdiction. §§ 10. Macau’s unique two-layered law and social reality and two-layered cultural originalism stands as a prototypical example of social crystallization. From the middle of the sixteenth century onwards, culture, philosophy (Confucianism) and law and mediation (three crucially important Luhmann’s social sub-system) have crystalized at the first layer of law and social reality and at the first layer of Chinese cultural originalism (to which Chinese non-converted to Christianity have abided by ever since). §§ 11. From the middle of the sixteenth century onwards, religion (Christianity) and law and mediation (two quintessential Luhmann’s social sub-system) have crystalized at the second layer of law and social reality. §§ 12. Anglo-Saxon England (in the eleventh century) stands as another example of social crystallization. Chiefly because the social crystallization between religion and law and mediation has sent ripples across the whole legal eternity thus swaying the tagged Frank Sander’s multidoor courthouse idea, which would not surface until the twilight of the twentieth century further the much-appraised Pound Conference of 1976. §§ 13. The quintessential concept of penitential justice (the capstone of the legal framework laid down by Roman Catholic Church in Anglo-Saxon England), which would deeply sway the very concept of imposition of costs to disputants that failed to contemplate mediation in good faith arisen from the UK Woolf reforms of 1999, stands as another example of the social crystallization between religion and law and mediation in Anglo-Saxon England by means of which the Roman Catholic Church shaped mediation for centuries to come. §§ 14. Social Synthesis amounts to a concept that, to be fulfilled, begs for the need of a given lawmaker or policymaker to drill into, and shine light on, a given jurisdiction’s cultural background and underlying social backbone with a view to design the perimeter of disputes to be included in the remit of pre-suit mandatory mediation with an easy opt-out. The matters included in this mandatory mediation framework must be revised from time to time.

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§§ 15. The underlying social reality is to dictate which matters are to be included and which matters are to be excluded from the remit of pre-suit court-connected mandatory mediation with an easy opt-out. Such matters hinge upon solely a given jurisdiction underlying social reality. §§ 16. In the remit of the second tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation), light has been cast upon one of most prominent Luhmann’s social sub-systems: culture. Foremost the interplay between culture and mediation. §§ 17. Culture plays a pivotal role in Cultural Dynamics of Mediation. Often, cultural reasons prompt the choice for a given dispute resolution mechanism. Chiefly mediation. §§ 18. Which adds further plausibility to my newly-crafted concepts of cultural differentiation of voice and adaptive mediation. §§ 19. Cultural differentiation of voice means that voice (one of the bedrocks of cultural dynamics of mediation) has different levels and tonalities against the background of different cultural backgrounds. Ranging from the level that cares about the disputants voice or an individual voice (mostly in cultures of dignity), level indifferent to voice or a silent voice (mostly in cultures of honour) to the level that conveys the groups voice or a collective voice (mostly in cultures of face). The stellar mediator, in embracing an emic-adaptive concept of culture, must not lose sight of the captioned cultural differentiation of voice and adaptive mediation. §§ 20. Adaptive mediation (a new style of mediation which has been brought forth in this book) is tightly interlocked to the fact that different cultural backgrounds beget and breed: (i) different ways of thinking; (ii) different ways of seeing the world; (iii) different mindsets in mediation settings; (iv) different ways to expound (impart and trot out) one’s side of the story; (v) different ways to clutch longterm harmony-equilibrium; (vi) to which the stellar mediator must not only be responsive to, but adaptive to. §§ 21. In so doing, the stellar mediator (whom must embrace an emic-adaptive concept of culture and resort to adaptive mediation in an earnest attempt to be beware of, and be responsive and adaptive to, disputants dissimilar cultural background, individuality and modalities of communication) must consider adapt the style of mediation to match: (i) the disputants cultural background; (ii) the disputants modality of communication; (iii) the intricacies of the case at hand. §§ 22. Building on the cultural differentiation of voice, the stellar mediator must consider resort to a style of mediation befitted to the disputants cultural background and their modality of communication. §§ 23. Against this background, the insight, facilitative, transformative and narrative are the befitted styles of mediation for members of cultures of dignity due to the exceedingly high levels of Hofstede’s cultural dimension of individualism. §§ 24. The incorporative style of mediation is the befitted one for members of cultures of honour due to the exceedingly low levels of personal empowerment to make informed choices in mediation settings.

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§§ 25. The incorporative style of mediation is crucially important in cultures of honour with a view to bypass and circumvent the gruesome phenomenon of party autonomy tokenization, which is in dire need of quashing in the remit of the four-tiered model of mediation. §§ 26. The directive style of mediation is suitably tailored for members of cultures of face due to the exceedingly high levels of Hofstede’s cultural dimension of collectivism and power distance. §§ 27. Taken together, and if handled adroitly, such different set of cultural schemas are bound to yield both long-term harmony-equilibrium (in reshuffling their relationship, disputants will pave the way to, and usher in, a voluntary compliance with the outcome of the mediated settlement agreement) and wealth procedural maximization in a given jurisdiction (manifold gains in time, money and overall credibility will arise from the voluntary compliance with the outcome of the mediated settlement agreement)—two flagships of my four-tiered model of mediation. §§ 28. An emic-adaptive stellar mediator, whom is bound to abide by, and comply with, a functional accountability to the Rule of Law, must never lose sight of that. §§ 29. The intrinsic linkage between the first tier of the Four-Tiered Model of Mediation (Social Dynamics of Mediation) and the second tier of the Four-Tiered Model of Mediation (Cultural Dynamics of Mediation) aims to draw (policymakers’ and lawmakers’) attention to the not-to-be-forgotten interplay between law and social reality. To which I have alluded at the Introduction of this book. §§ 30. To ensure the compliance with the fabric of my newly-crafted concept of effective access to justice as an extension of the Rule of Law, the sizzling hot topic of mediator misconduct must be neither tethered to (outdated and outpaced) contract law principles nor to fiduciary duties, often wrapped in opaqueness. §§ 31. Rather, the malpractice lawsuits regarding mediator misconduct must be subject to the two-pronged model of fairness-abiding mediator coupled with the three-pronged test of mediator misconduct, which, taken together, are amenable to streamline the process of establishing causation and afford redress to plaintiffs when such relief is due. §§ 32. My two-pronged model of the effective fairness-abiding mediator begs for a mediator that must: (i) protect the principle of self-determination and the cultural differentiation of voice; (ii) resort to adaptive mediation to match: (i) the disputants cultural background; (ii) individuality, and (iii) modality of communication; §§ 33. (iv) keep procedural imbalances, power imbalances and bargaining imbalances at bay in mediation sessions while adopting an incorporative style of mediation to protect the weakest disputant in the room; (v) keep party autonomy tokenisation at bay; (vi) pour in whopping efforts to cast off both coercion in mediation and a pecuniary approach to mediation from Legal Dynamics of Mediation’s purview (vii) raise awareness to harmony-geared consideration during joint mediation sessions and caucuses sessions. §§ 34. The foregoing two-pronged model of the effective fairness-abiding mediator warrants the conclusion according to which if the mediator abides by: (i)

7 Conclusions

191

effective fairness of the procedure from which emerged the mediated settlement agreement and (ii) effective fairness of the outcome of the mediated settlement agreement, there would be no grounds for mediator misconduct whatsoever. If that fails to happen, the mediator is bound to face allegations of misconduct. §§ 35. This is the exact moment at which my three-pronged test of mediator misconduct steps in. §§ 36. My three-pronged test of mediator misconduct is aimed at gauging whether and to what extent the mediator has abided by, and has complied with, both the functional accountability of the Rule of Law and by the fundamental tenets of effective access to justice as an extension of the Rule of Law. §§ 37. The fourth tier of the Four-Tiered Model of Mediation (Cross-Border and Cross-Cultural Dynamics of Mediation) has been constructed with a view to accommodate different cultural backgrounds amidst a globalized, variegated and multicultural world we live in. §§ 38. Insofar we live in a checkered and multicultural world, the concept of multiple modernities (as opposed to a to-be-frowned-upon single western-charged modernity) must be adopted in the remit of investor-state mediation. §§ 39. To boost the overall functionality of the fourth tier of the Four-Tiered Model of Mediation, the stellar mediator must adopt an emic-adaptive concept of culture, thereby gaining deeper insight on the paramount importance of adaptive mediation in the remit of investor-state mediation. §§ 40. In gaining insight of the starring role that adaptive mediation plays in the remit of investor-state mediation, the emic-adaptive mediator is to pave the way to the sought-after making cultural sense together, which is a byproduct of collective sensemaking—whose foundations have been laid down at the Introduction of this book. §§ 41. The emic-adaptive mediator must not lose sight of the fact that different cultural backgrounds beget, breed, and beg for: (i) different types of communication; (ii) different modalities of communication. Which is also of acute importance when it comes to the enforcement of mediated settlement agreements against the backdrop of Singapore Convention on Mediation. §§ 42. Enforcement stands as the crowning achievement of, and as the propelling force behind, international commercial mediation, which seeks to clutch the overall functionality of International Commercial Trade Law. §§ 43. The enactment of Singapore Convention of Mediation is not without sizable shortcomings. Amongst which stands the overreliance on scattered contract law principles and opaque fiduciary duties as a yardstick to halt the enforcement of mediated settlement agreements, which amounts to one of its major drawbacks. §§ 44. To ensure adaptability (and the functionality) to (of) both the legal culture and the underlying cultural background of a given jurisdiction, the emic-adaptive judge must adopt the two-pronged model of fairness-abiding mediator coupled with the three-pronged test of mediator misconduct.

Appendix

Documents Regarding Mediation and Other References Historical Archive Bond, A.E. (ed.), Facsimiles of Ancient Charters in the British Museum, London, By the Order of Trustees, Contributor: Columbia University Libraries (1873): available at: https://openlibrary.org/books/OL14789567M/Facsimiles_of_ancient_ charters_in_the_British_museum (access: 31.03.2019) (facsimiles of 140 English documents dating from A.D. 624 < 674? > to the eleventh century. Later documents are reproduced in the new series: Facsimiles of royal and other charters in the British museum). Portugal Historical Archive Álvara de Regimento do Ouvidor de 26 de Março de 1803, available at: http://legisl acao-regia.parlamento.pt/V/1/11/24/ (access: 25.12.2018). Decreto de 7 de Dezembro de 1836, available at http://legislacao-regia.parlam ento.pt/V/1/16/88/ (access: 31.12.2018). Decreto de 1 de Dezembro de 1866, available at: http://legislacao-regia.parlam ento.pt/V/1/41/90/ (access: 1.01.2019). Procuratorate’s Regiment of Chinese Businesses (Procuratura dos Negócios Sínicos), available at: http://legislacao-regia.parlamento.pt/V/1/75/124/ (access: 1.02.2019). Regiment of Administration of Justice of Ultramarine Provinces (Regime da Administração da Justiça nas Províncias Ultramarinas) available at http://legislacaoregia.parlamento.pt/V/1/80//117/ (access: 1.01.2019). “Regime da Reiação, e Ministros da Justiça da India, Titolo do regimento do Ouvidor de Macáo nas partes da China”, Archivo Portuguez Oriental, fascículo 5.º, 3a parte, Lisboa, Imprensa Nacional Casa da Moeda, 1866, p. 1143–1144.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 H. L. d. Santos, Towards a Four-Tiered Model of Mediation, https://doi.org/10.1007/978-981-19-9429-6

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Second Book, Title XXVIII, Prologue and First Paragraph, Ordenações Manuelinas, available at: http://www1.ci.uc.pt/ihti/proj/manuelinas/12p138.htm (access: 14.08.2018). Legislative Frameworks Regarding Mediation and Arbitration Global Pound Conference Global Pound Conference Global Trends Report from Herbert Smith Freehills and PwC, Global Pound Conference: Global Data Trends and Regional Differences Series, available at: https://www.pwc.com/gx/en/forensics/gpc-2018-pwc.pdf (access: 08.07.2020). Global Pound Conference Series, Shaping the Future of Dispute Resolution & Improving Access to Justice, Cumulated Data Results (2016–2017), available at: https://www.imimediation.org/research/gpc/series-data-and-reports/#905909-reports (access: 08.07.2020). Reports Lord Woolf, Her Majesty’s Stationary Office, Access to Justice: Interim Report to the Lord Chancellor on The Civil Justice in England and Wales, June 1995, partially available at: http://www1.worldbank.org/publicsector/LearningProgram/ anticorrupt/premnote40.pdf (access: 27.08.2020) available at: https://webarchive.nat ionalarchives.gov.uk/20060213223540/. http://www.dca.gov.uk/civil/final/contents. htm (access: 27.08.2020). UNCITRAL travaux préparatoires of Singapore Convention on Mediation (Reports of the Working Group II—Dispute Settlement and Arbitration and Conciliation) UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixty-third Session (Vienna, 7–11 September 2015) (A/CN.9/861) (17th of September of 2015), 2015, p. 16–17, available at: https://undocs.org/en/A/CN. 9/901 (access: 11.06.2020). UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of Its Sixty-fourth Session (New York, 1–5 February 2016) (A/CN.9/867) (10th of February of 2016), 2016, p. 27–28, available at: https://undocs.org/en/A/CN.9/901 (access: 11.06.2020). UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-fifth Session (Vienna, 12–23 September 2016) (A/CN.9/896) (30th of September of 2016), 2016, p. 19–21, p. 32–34 available at: https://undocs.org/en/A/ CN.9/896 (access: 11.06.2020). UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6–10 February 2017) (A/CN.9/901) (16th of February of 2017), 2017, p. 8–9, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-seventh Session (New York, 2–6 February 2017) (A/CN.9/929) (11th of

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October of 2017), 2017, p. 15–16, available at: https://undocs.org/en/A/CN.9/861 (access: 11.06.2020). UNCITRAL travaux préparatoires of Singapore Convention on Mediation (Audio Recordings of Working Group II) UNCITRAL Audio Recordings, oral intervention of International Mediation Institute (IMI): Working Group II (Arbitration and Conciliation), 64th Session, 4th of February of 2016, 2016, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/spe akerslog/83bbcdba-28c4-4368-bab6-e8d17b3fbcb6 (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of International Law Association (ILA): Working Group II (Arbitration and Conciliation), 64th Session, 4th of February of 2016, 2016, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/unc itral/speakerslog/83bbcdba-28c4-4368-bab6-e8d17b3fbcb6 (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of the Mexico, Australia, the United States of America, Singapore, Canada, China, Argentina, and Pakistan: Working Group II (Dispute Settlement), 65th Session, 16th of September of 2016, 2016, 09:30–12:30, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/ e6cda078-71e2-4108-adab-66df99f84fda (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of the European Union: Working Group II (Dispute Settlement), 65th Session, 16th of September of 2016, 2016, 09:30–12:30, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/ e6cda078-71e2-4108-adab-66df99f84fda (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of Mexico: Working Group II (Dispute Settlement), 65th Session, 21th of September of 2016, 2016, 14:00–17:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/ 8cdfd2fc-617b-432d-bf9c-98d8abf0d29a (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of Israel: Working Group II (Dispute Settlement), 66th Session, 7th of February of 2017, 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/ 2332cbc3-282e-4473-8396-a949d51f011b (access: 10.06.2020). UNCITRAL Audio Recordings, oral intervention of Corporate Counsel International Arbitration Group (CCIAG): Working Group II (Dispute Settlement), 66th Session, 7th of February of 2017, 2017, 15:00–18:00, https://icms.unov.org/ CarbonWeb/public/uncitral/speakerslog/2332cbc3-282e-4473-8396-a949d51f011b (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of Germany: Working Group II (Dispute Settlement), 66th Session, 8th of February of 2017, 2017, 15:00–18:00, https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/d9977f b46-494f-48c0-878e-225c68ee8745 (access: 11.06.2020). UNCITRAL Audio Recordings, oral intervention of International Academy of Mediators (IAM) and the Forum for International Conciliation and Arbitration (FICA): Working Group II (Dispute Settlement), 66th Session, 10th of February

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of 2017, 2017, 10:00–13:00, https://icms.unov.org/CarbonWeb/public/uncitral/spe akerslog/f61927a-e928-400e-b6d0-08b213c54710 (access: 12.06.2020). Various Bodies of Legislation Related to Macau Decree Law n. º 29/96/M, of 11th of June (Law of Internal Arbitration), available at: https://bo.io.gov.mo/bo/i/96/24/declei29.asp. Decree Law n. º 55/98/M, of 23rd of November (Law of External Arbitration), available at: https://bo.io.gov.mo/bo/i/98/47/declei55.asp. Macau´s judicial courts statistics, available at: http://www.court.gov.mo/pt/sub page/statisticstjb (access: 02.07.2020). The Law n. º 19/2019 («Lei da Arbitragem de Macau»), available at: https://bo. io.gov.mo/bo/i/2019/44/lei19.asp (access: 02.07.2020). Case Law Texas Court of Appeal Lehrer v. Zwernemann, 14 S. W.3d 775, Texas Court of Appeal (Tex. App. 2000), available at: https://caselaw.findlaw.com/tx-court-of-appeals/1125670.html (access: 12.06.2020). United Kingdom (England and Wales High Court) Hurst v Leeming (2001), England and Wales High Court (EWHC) (Ch) 1051 (Eng.), available at: https://www.judiciary.uk/court/high-court/ (access: 27.08.2020). UK (England and Wales Court of Appeals) Dunnet v. Railtrack (2002), England and Wales Court of Appeals (EWCA) (Civ) 2003 (Eng.), available at: https://www.judiciary.uk/court/court-of-appeal/ (access: 27.08.2020). United States Court of Appeals Ohio University Bd of Trs v. Smith, 724, N.E., 2d 1155, 1161 (Ohio Ct. App 1999). Morrison v. Circuit City Stores, Inc, 313, F3d, 646, 666 (6 th Circ. 2003), available at: https://www.uscourts.gov/about-federal-courts/court-role-andstructure/about-us-courts-appeals (access: 28.08.2020).

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