The Paradox of Power Asymmetry and Voluntary Participation in Construction Dispute Mediation

2021 ◽  
pp. 229-254
Author(s):  
Nan Cao ◽  
Sai On Cheung
Keyword(s):  
Voluntary Participation ◽  
Power Asymmetry ◽  
Dispute Mediation ◽  
Paradox Of Power

scholarly journals The current state of development of legislative bases mediation of land disputes

2020 ◽  
pp. 337-341
Author(s):  
Diana Busuiok
Keyword(s):  
Social Relations ◽  
Voluntary Participation ◽  
Land Dispute ◽  
Current State ◽  
Land Disputes ◽  
Land Relations ◽  
The Law ◽  
The Government ◽  
Dispute Mediation ◽  
Land Code

The article examines the existing drafts of the Law of Ukraine “On Mediation” and defines how to improve them according toresolution of land disputes in the order of mediation.Land disputes can be resolved through a mediation procedure. The current land legislation, in particular the Land Code ofUkraine, does not contain any prohibition on mediation of land disputes. This possibility follows from the dispositive method of legalregulation of land relations – everything is allowed that is not prohibited by law.At the same time, the issue of direct legislative settlement of land dispute mediation still remains open. There are several draftsof the Law of Ukraine «On Mediation» on the website of the Verkhovna Rada of Ukraine. One of the draft laws «On Mediation»№ 3665 of December 17, 2015 was adopted in the first reading, but in 2019 the Verkhovna Rada of Ukraine rejected it – the bill wasnot adopted. On December 28, 2019, the government bill «On Mediation» № 2706 was registered in the Parliament. However, this billwas withdrawn on March 4, 2020.There is a need to investigate the latest legislative trends in the settlement of land dispute mediation, based on the above bills. Ifthe general provisions are spelled out in more detail in the government bill, the specifics are in the 2015 bill.Based on the analysis of the two bills, we consider it appropriate to note that the measures that we believe will facilitate the introductionof mediation in resolving land disputes should include the promotion of mediation as an out-of-court settlement of land disputesand their direct resolution through mediation. So far, the resolution of land disputes through mediation remains a theoretical construction.Resolving land disputes through a mediation procedure will determine the best way to regulate these land relations. Without thepractical application of mediation in resolving land disputes, it remains only to envisage possible legal mechanisms for the legal regulationof these social relations. The latter may have significant shortcomings, which will be possible to identify only in practice. None of the proposed bills includes land disputes in the list of disputes that can be resolved through mediation, but according tocurrent land legislation, in particular the Land Code of Ukraine, there are cases when such a method of resolving land disputes has aright to exist, in particular in disputes land easements.The requirement to go to court in case of non-fulfillment of obligations under the agreement as a result of mediation is controversial.This is contrary to the very nature of mediation, which should be carried out on the basis of voluntary participation in the mediation procedure,and the parties themselves should decide on options for resolving the dispute. This requirement is contrary to the nature of mediation.We consider it necessary that these provisions on land mediation be taken into account in further work on possible draft laws onmediation.

SUPPLIER-RETAILER POWER ASYMMETRY; AN AUSTRALIAN PERSPECTIVE

2014 ◽  
Author(s):  
Catherine Sutton-Brady ◽  
◽  
Patty Kamvounias ◽  
Tom Taylor
Keyword(s):  
Power Asymmetry

Conclusion

2018 ◽  
Author(s):  
Javier Corrales
Keyword(s):  
Institutional Change ◽  
Executive Branch ◽  
Potential Threat ◽  
Power Asymmetry ◽  
Large Power ◽  
Power Differential ◽  
Constitution Making

The chapter presents a summary of main findings and discusses their implications. The book’s main finding is that extreme power asymmetry on behalf of the Incumbent creates the conditions for institutional change that empowers mostly the executive branch. A large power differential between the Incumbent and the Opposition encourages the Incumbent to seize the advantage to initiate bold, self-serving institutional change, sometimes even a constitutional overhaul. If the latter gets underway, and power asymmetry stays pro-Incumbent, chances are the new constitution will expand the powers of the Executive branch. This outcome, in turn, can spread discontent across Opposition forces and sometimes encourage the Incumbent to govern more unilaterally. This presents a potential threat to democracy. The chapter concludes by discussing the implications of this finding for different literatures: democratization, constitution-making, presidential powers, and government-Opposition relations.

The Argument

2018 ◽  
Author(s):  
Javier Corrales
Keyword(s):  
Bargaining Theory ◽  
Main Argument ◽  
Power Asymmetry ◽  
Regime Formation ◽  
Power Asymmetries

Chapter 2 lays out the book’s main argument on the importance of power asymmetry. It draws from three strands in the literature. From the literature on democratization, this chapter borrows the notion of constitutions as pact-making. From bargaining theory is borrowed the notion of self-dealing: Incumbents will seek to advance the powers of the office that they hold. And from the literature on elite theories of regime formation, the chapter develops the argument that power asymmetries among elite actors are the fundamental drivers of balanced constitutions. This book also seeks to explain the origins of an important institution: constitutions. It takes seriously the insight from institutionalists that institutions emerge from actors’ de facto power and bargaining outcomes. Yet, this book does not assume that actors’ preferences are exogenous, or exclusively ideological, and partisan; rather, those who negotiate a constitution have preferences that depend on whether they are Incumbents or Opposition forces, often regardless of their ideologies and partisan orientation.

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