Over the last thirty years, it is now a fact that alternative dispute resolution methods have been increasingly preferred over traditional methods of resolving disputes. Instead of resolving disputes before the courts, stakeholders have enjoyed variety of methods that have proven to lighten the workload of courts.
Importantly, it should be recalled that the one of the primary purposes of alternative dispute resolution methods is to provide parties a consensual atmosphere so that disputes can be resolved constructively, swiftly and efficiently.
Among these alternative dispute resolution mechanisms, mediation stands out as a flexible vehicle, conducted in the guidance by an independent and impartial third party called mediator.
Mediation provides opportunities that cannot be achieved in court, i.e. forestalling potential communication problems with other party, thus allowing to discuss problems and reveal the points that may lead to a settlement.
The mediation process is conducted voluntarily, meaning the parties make their own decisions and the mediator has no authority to make any decision. For this reason, mediation offers significant benefits over traditional litigation process.
Mediation is faster than litigation process which generally takes years. Seeking resolution of the disputes in a shorter time enables parties to preserve their resources which may be utilized during a lengthy judicial process. Mediation is usually completed within a few days or weeks.
As mentioned above, from the perspective of the procedural economy, mediation costs are lower than the trial costs, such as fees of litigation, expert or witness which should be paid at the start of the case. Likewise, during the lengthy trial process, the parties spend substantial amount of time and human resources, while in the mediation process such expenses are much less.
Mediation, as its name suggests, may help parties to protect relationship between the and generate much embraced results.
The Legal Framework of the Mediation in Turkish Legal System
The mediation method was implemented in the Turkish Legal System with the enactment of the Law on Mediation in Legal Disputes ("LMLD") "No. 6325" on 22 June 2012. In addition to this primary legislation the Regulation on Law of Mediation in Legal Disputes published on January 26, 2013 as the secondary legislation.
According to the Article 2 of the Regulation on LMLD, in order to conduct mediation activities, a mediator must take relevant training. After passing the written and oral mediation exams administered by the Ministry of Justice, then they must be registered in the Mediator's registry kept by the Ministry of Justice.
Principles of Voluntariness and Equality
Article 5 of the Regulation on LMLD regulates the principles of Voluntariness and Equality in the mediation process. According to this the parties are free to resort to a mediator, in order to continue, finalize or terminate the procedure. The parties agree to finalize such a dispute primarily by means of mediation. While the parties cannot be forced to seek mediation, they can also terminate the process of mediation at every stage of the negotiations.
The parties shall have equal rights both at the application process and during the procedure. A party cannot be deprived from participating to mediation process or its ability to assert claims.
Privacy is regulated by the Article 6 of the Regulation on LMLD. Accordingly, unless otherwise decided by the parties, the mediator is obliged to keep secret of any information and documents and other confidential records submitted to him or the others that were obtained in due course. Unless otherwise consented, the parties and their legal representatives are also obliged to abide by this principle.
Impartiality of the Mediators
Pursuant to the Regulation on LMLD, a mediator shall act impartially while conducting mediation and cannot exhibit any attitude and behavior causing any doubt concerning his impartiality.
Termination of The Mediation
According to Regulation, the mediation activity will conclude in case the following circumstances
- The fact that the parties have arrived to an agreement on the subject of dispute,
- After having taken the advice of the parties, if the mediator has evaluated that it is fruitless to make further effort for mediation;
- If a party have advised to the counterparty or to mediator that it has withdrawn from mediation activity,
- If the parties consensually have terminated the mediation activity.
- If that the dispute is not favorable for mediation or that it has been fixed as being related to an offense not included by compromise by virtue of the Penal Procedure Law No:5271.
Agreement of Parties According to the Regulation, the scope of the agreement reached at the end of the mediation activity must be determined by the parties. Then, the said agreement must be signed by the parties and the mediator.
If the parties have come reached to an agreement at the end of the mediation activity, they have the right to demand for an annotation indicating that this agreement has binding effect as if it is a court judgment.
If the mediation has been initiated before registering a lawsuit then, it is becoming possible to demand from the court where the law suit is actually pending, to confer an annotation indicating that the agreement has binding effect. An agreement containing such an annotation is considered as a court judgment.
Which Types of Disputes Can be Mediated?
Pursuant to Article 1 of the LMLD, private law disputes arising from actions and transactions which the parties may freely decide on, including disputes involving foreign element, are eligible for mediation. Importantly, the Regulation specially emphasizes that any claim that consist domestic violence cannot be subjected to mediation.
Obligatory Mediation in Turkish Legislative System: Mediation on Labor Disputes
The Law on Labor Courts ("LLC") "No:7036" has entered into force on 25.10.2017 by introducing a revolutionary move to Turkish legislation and practice of labor disputes. According to Article 3 of the LLC, it is mandatory to apply to mediation before filing a lawsuit on the grounds of debt and compensation claims arising from the law, individual or collective labor contracts or reemployment claims.
According to the Article, the mediation process should be concluded within three weeks, but taking into account the course of events the mediator may extend this period for one week.
A Mediation Centre in the heart of Bosphorus: Istanbul Arbitration Centre (''ISTAC'') Arbitration Service
Being an independent and impartial institution that provide dispute resolution services, ISTAC also offers mediation services under the ISTAC Mediation Rules alongside with its sterling arbitration services.
In order to resolve disputes by mediation before the ISTAC, a mediation agreement or a mediation clause in the relevant contract that refers the dispute to the ISTAC Mediation Rules is required.
Although the parties have not made a mediation agreement or included a mediation clause in the contract between themselves, they, nevertheless, may willingly commence the mediation process under the ISTAC Mediation Rules.
Thanks to its neutral and well-organized structure assisted by
competent staff, ISTAC have been inarguably demonstrating a
functional and constructive services of mediation Services for
Turkish and foreign actors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.