The Law of Mediation for Civil Conflicts1 ("LMCC") no. 6325 drafted by taking Austrian Federal Law as a model, caused many debates within the public platforms and sets forth principles and procedures that will be applied to civil conflicts through mediation, published on the Official Gazette dated 22 June 2012 and entered into force as of 22 June 20132. Thus, a new era has started for the Turkish Judicial System for solving civil conflicts.
A mediator has been defined as a real person that is carrying out mediation3 activities and registered to the Mediators Registry4 kept by the Ministry. In order for the mediators to be registered to the registry, they must be law school graduates with at least five years of experience in their profession, must finish mediators training and must pass written and practical exams provided by the Ministry of Justice.
At the preamble of LMCC it has been emphasized that, the mediator will not be solving the conflict by taking any decisions, but try to make parties involved in negotiations by persuasion and suggestion and try to settle the conflict by maintaining the effort. In this regard, the point that should be underlined is that the mediators are not authorized take any decisions on the resolution of the conflict and shall not propose any solution offers to the parties.
The mediator is obliged to perform his/her duty diligently, independently and in person and may have meetings and establish communication with both parties separately or together.
The Field of Application of Law and Principle of Preference
Under LMCC it has been stated that the provisions of the code shall be applied during the resolution of civil conflicts arisen from the transactions that parties may perform freely including the ones having a foreignness element. Under these circumstances, the institution of mediation shall not be applied for the resolution of conflicts arising from legal relationships related to the public order and accordingly not providing opportunity to the parties perform freely.
On the other hand, it has been expressed that the parties are free to apply to a mediator, to continue the process, to finalize or to abandon the process and they have equal rights whether during applying to a mediator or during the whole process. In addition to this, the parties are free to settle on the issue of applying to a mediator before the filing a lawsuit or while the lawsuit is pending, and also the court may advise, encourage the parties to apply to a mediator. After filing the lawsuit, if parties declare that they will apply to a mediator, the judgment may be suspended not more than three months by the court and this period may be extended not more than three months after the application of both parties. The time spent from the start of the mediation to its end, are not taken into consideration while calculating the periods of lapse of time and foreclosure.
Confidentiality – Not using the declarations and documents
Unless otherwise decided by the parties, the mediator is obliged to keep all the information and documents submitted to him in the frame of mediation activity or he/she obtained through other ways and other records confidential5. In parallel to this provision, as per LMCC Article 5; in case of a lawsuit have been filed or the arbitration way have been resorted, the parties, the mediator or the third persons including the ones involved in the mediation, shall not submit the declarations or documents stated herein below as evidence and shall not witness regarding these:
a) Invitation to mediation made by the parties or request of one party to involve in mediation activities.
b) The suggestions and proposals bring forwarded by the parties in order to resolve the conflict by mediation.
c) During the process of mediation activities, the suggestions submitted by the parties or acknowledgment of any kind of fact or claim.
d) Documents drafted only due to mediation activities.
Settlement Agreement and Enforcement
Article 18 of LMCC sets forth the scope, form and results of the agreement in case of reaching a settlement as a result of mediation activities. Pursuant to mentioned article, the scope of the agreement shall be determined by the parties and in case of drafting a settlement agreement; this document shall be signed by the parties and the mediator.
The settlement agreement will have different legal affects in line with two possibilities. If the parties would like to implement the agreement as the way it is, the agreement drafted at the end of mediation will be subjected to general provisions. However, if it is desired to give this agreement the characteristics of a verdict, it is needed to request the court to annotate the agreement with enforceability. In case of an application to mediation before filing a lawsuit, the annotation regarding the enforceability of the agreement may only be requested from the court which would be determined in accordance with provisions of competence and venue on the main conflict. In case of an application to mediation during a pending lawsuit, the annotation regarding the enforceability of the agreement may be requested from the court that the lawsuit is pending. In characteristics, the proceeding of annotation regarding enforceability is an ex parte proceeding and the analysis in this regard may be on the file. However, the analysis with regard to conflicts arising from family law matters that are suitable for mediation shall be done with oral hearings. The scope of this analysis is limited with the following concepts of the agreement
- If transactions are among the ones that the parties can perform freely,
- Whether it is suitable for enforcement.
As understood from the respective provision, the agreement signed by the parties and the mediator at the end of the mediation negotiation solely does not have the characteristics of enforceability. Thus it is prevented for the parties to apply to mediator with regard to matters that are not subjected to mediation and draft settlement agreement and try to give a verdict characteristic to a document that is not enforceable.
The efficiency and implementation frequency of mediation activities within the scope of LMCC which created many debates when it was in the process of drafting and after it passed into law, will be experienced in time. It is unquestioning that the mediation system will create benefits on the point of resolving the conflicts more economically and with fast methods and will decrease the work load of the courts if the settlement culture, dominating the essence of law, will spread through the society.Footnotes
- At the preamble of Mediation Law it has been stated (i) that the alternative ways of dispute resolution are on the agenda of legislators of most of the countries within the last years, to end the conflicts by settlement with the will of the both parties instead of litigation is a reason of preference to keep the public peace, (ii) that these ways becoming widely and effectively operative will contribute to decrease the work load of the courts, (iii) that the mediation system is not in competition with the judicial system and that the aim will not abolish the possibility to apply to judicial ways, (iv) and that it is a necessity to settle easily and simply the conflicts without harming the absolute sovereignty of the judicial authority that belongs to the state.
- Articles from 28 to 32 and the temporary articles of LMCC have been entered into force on the date of the publication of the code. On the other hand, the Regulations on Mediation for Civil Conflicts drafted as per Article 36 of LMCC have been published on the Official Gazette dated 26 January 2013 and entered into force as of 22 June 2013.
- Mediation: represents a way of resolving a conflict being executed by preference, that enables parties to come together and understand each other in order to do meetings and negotiations by using systematic techniques and by this means to establish communication process in order to create their own ways of solution by involvement of an independent and impartial third person having specialized education. (LMCC Article 2-b)
- The Head Department of Mediation established within General Directorate of Legal Affairs has been authorized to keep the registry of the persons who earned the title of mediator for the civil law conflicts.
- The person who caused damage on a legally protected interest of a person by acting against the obligations will be sentenced with imprisonment up to six months (LMCC Art. 33/1).
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.