Turkey: The New Method Of Alternative Dispute Resolution: Are We Ready To Mediate?

Mediation, as an alternative dispute resolution method, has been on the agenda of the European Union (the "EU") and Turkey for a long time. In 2002, a Model Law on International Commercial Conciliation was drafted by the United Nations Commission on International Trade Law as a guideline in order to harmonize the laws of mediation that may be enacted by member states. In 1998, the EU focused on resolving disputes occurring within EU borders through mediation and, in 2002, a "Green Paper" was published that established the main principles of mediation. Finally, through Directive 2008/52/EC (the "Directive"), certain aspects of mediation in civil and commercial matters were announced for member states. The Directive draws a framework within which mediation law is to be drafted and adopted by the member states, mainly concentrating on recourse to mediation, enforceability of agreements resulting from mediation, confi dentiality, effects on limitation and prescription periods.

Looking at recent developments in Turkey, the Bill on the Mediation of Civil Disputes (the "Bill") prepared by the Ministry of Justice (the "Ministry") is still on the waiting list of the sub-committee of the Turkish Parliament. The Bill follows the framework set out by the Directive on certain issues mentioned above.

The Bill, as explained on its legal grounds, aims to decrease the volume of disputes brought before the courts, encourages litigants to reach amicable solutions voluntarily and facilitates easier access to justice, which is a right protected under the Constitution of the Republic of Turkey (the "Constitution").

The scope of mediation is defined as civil law matters, including those with foreign elements, in which the parties are free to decide. Under this Bill, the mediator is defined as a real person who conducts mediations and is registered with the Mediators' Registry through the Ministry. At the end of the mediation process, the mediator does not make a decision on behalf of the parties, but facilitates an amicable solution by encouraging communication between the parties. Since mediation strictly depends on the mutual agreement of parties, litigants are free to commence, continue or terminate the mediation process. The parties have equal rights when applying for, and during, the mediation process.

As per Article 13 of the Bill, litigants may agree to apply for a mediator prior to, or during, litigation before the courts. Also, the courts may counsel parties regarding the mediation procedure and encourage them to appoint a mediator. Unless otherwise agreed, if one party does not respond within thirty days to the offer of the other party to appoint a mediator, such offer is deemed to be rejected. Moreover, the parties are free to appoint one or more mediators and to agree on the mediation method to be used. In the event that the parties decide to apply for mediation after the dispute has been brought to the attention of the courts, court hearings will be adjourned for a period of three months. The adjournment period may be extended upon the parties' mutual application to the court.

With respect to confidentiality, which may be the most sensitive issue of the mediation process from the view of the litigants, the Bill obliges mediators to keep confidential all information that comes to light during the mediation process, and the parties are also bound by such a confidentiality obligation unless otherwise agreed. Moreover, the parties, the mediator(s) or any other third party, including those involved in the mediation process, shall not present the following documents and statements as evidence before a court or arbitration tribunal regarding the same dispute: (i) invitation to mediate by one party, or either party's willingness to participate in the mediation process; (ii) comments and offers made by either party to resolve the dispute through mediation; (iii) proposals made by one of the parties, or acceptance of a claim or incident during the mediation process; (iv) documents drafted solely for the mediation process. However, such information may be disclosed where it is required by law, or to the extent that it may be necessary to implement or enforce the agreement reached at the end of the mediation.

Moreover, in order to avoid any loss of right, the Bill specifically regulates the effect of mediation on limitation and prescription periods. Accordingly, the period between the commencement and cessation of the mediation process shall not be counted in the calculation of limitation and prescription periods.

Furthermore, with respect to enforceability of agreements, the Bill enables the parties to apply for an execution court to ensure that the agreement arising from the mediation is enforceable. The examination made by the court will be a limited examination as to whether such dispute is a matter wherein parties are free to decide, and that the final mutual agreement is executable.

Finally, it is accepted that mediation is terminated if: (i) the parties reach a mutual agreement on the dispute; (ii) it is ascertained by the mediator following consultations with the parties that efforts towards mediation have been rendered useless; (iii) either party notifies the other party or the mediator of its withdrawal from the mediation; or (iv) the parties mutually agree to terminate the mediation process.

As mentioned above, the Bill has parallel provisions with the Directive. However, despite the moderate views on mediation in the EU member states, there are many counterviews and criticisms in the legal arena within Turkey regarding the mediation process. Opponents base their arguments on a number of grounds in the Constitution, namely, Article 6 that imposes the "state governed by the rule of law" principle; Article 9, which states that the judicial power shall be exercised by independent courts on behalf of the Turkish nation; Article 138, which affi rms that no organ, authority, offi ce or individual may give orders or instructions to courts or judges relating to the exercise of judicial powers, send circulars, or make recommendations or suggestions; and, fi nally, Article 142, which states that the organization, duties and authorization of the courts, their operation and execution procedures shall be regulated by law. The Bill's opponents claim that, if enacted, it would be struck down by the Court of Constitution based on the Articles of the Constitution mentioned above. Moreover, Turkish bar associations and attorneys have also expressed their opposition to mediation each time it comes up as an item on the agenda of the Turkish Parliament, alleging that the Bill is a political instrument, rather than a legal one that aims to facilitate easy access to fair and swift resolution of disputes.

It seems that we will witness a sizeable change in the judicial environment in the country during the implementation of this dispute resolution instrument in practice, if opposing parties are able to achieve their own mediation and the Bill becomes law.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions