Mediation has been recognized by the Turkish legal system with the announcement of the Turkish Mediation Act on Civil Disputes dated 22 June 2012 ("the Act" or "the Mediation Act") entered into force on 23 June 2013. Highlights of the Mediation Act and secondary legislation [The Regulation on the Mediation Act on Civil Disputes and the Model Codes of Conduct for Mediators and Mediation, (partly based on the European Code of Conduct for Mediators and internationally recognized codes of ethics and conduct)] with a particular focus on commercial disputes can be summarized as follows.
Scope & Definition
The scope of the Act has been limited to civil disputes including those with a foreign element except as regards matters which are not at the parties' disposal.
Mediation has been defined in the Act as "a voluntary dispute resolution method implementing systematic techniques, enabling a communication process between parties and bringing them together for the purpose of negotiating, reaching an understanding and creating their own resolution, conducted with the assistance of an impartial and independent third person who has relevant expertise training."
Mediators are defined in the Act as real persons conducting mediation who are registered with the mediator registry of the Ministry of Justice. Requirements for registration include Turkish nationality, a degree in law and a minimum of five years legal practice as well as completion of the relevant mediation education program and success in the exams to be held by the Ministry of Justice.
General Principles & Rights and Duties of Mediators
The mediation provided for in the Act is a voluntary process in the sense that the parties are in charge of the process and may in principle, start, organize and end it as and when they wish. Parties have equal rights throughout the whole process.
Confidentiality has been protected by the following measures. Mediators (and their employees) and the parties (and their representatives) are prohibited from disclosing any documents and information received within the framework of the process, including conduct of the parties, unless otherwise agreed. Photographs, voice and video recording are prohibited. In addition to civil liability, breach of the duty of confidentiality is subject to imprisonment up to six months where legally protected interests of a person have been prejudiced as a result.
Where there is a lawsuit or arbitration proceedings arising from the particular dispute subject to mediation, the parties, and the mediator or third parties involved in the mediation are prohibited from relying as evidence on certain declarations, information or documents submitted during the mediation process or becoming a witness with respect thereto irrespective of the form of the relevant documents and declarations: Invitation made by either of the parties to mediation or declaration of willingness to participate in mediation; opinions, proposals submitted by the parties through mediation for the settlement of the dispute; acknowledgement or acceptance of any proposal, fact or assertions during the process and documents solely prepared for the purpose of mediation. No court, arbitrator or administrative authority may request the disclosure of the above and no judgment may be based thereupon. The relevant information may however be disclosed to the extent required for the implementation and enforcement of the agreement reached by the parties or if required by a mandatory provision of the law.
Mediators are entitled to communicate with the parties together or separately. Further to their duties concerning confidentiality, mediators are obviously under the obligation of impartiality, conducting their duties in person and with due care and inform parties on the elements, process and effects of the mediation as well as his function at the outset. Mediators are required at any time to avoid conflicts of interests and inform the parties of any such potential or current conflict. Parties may consent to the existence of the conflict in which case the mediator can in principle continue with the mediation. Mediators are prohibited from acting as lawyer, arbitrator, judge or expert witness or witness where there is litigation concerning the same dispute.
Unless determined otherwise by agreement between the parties and the mediator(s), mediators' entitlement to fees is determined on the basis of a minimum fee tariff annually published by the Ministry of Justice. Unless otherwise agreed the parties share the fees (and costs) equally. Mediators are prohibited to act on a success fee basis.
Parties are free to agree on mediation prior to or during a litigation process. Also the courts at a certain stage during litigation shall encourage (but not force) them to revert to mediation (or settlement). If a party does not receive an acceptance to the invitation to mediate within thirty days, the invitation shall be deemed to have been rejected unless otherwise concluded.
Upon appointment, the mediator shall as soon as possible invite the parties to a first meeting. Mediators shall keep records of steps such as meetings with the parties, start of the process, and other acts with respect to the process and the finalization of the mediation.
Parties are free to determine the rules of the mediation procedure subject to any mandatory rules of law. If no procedure has been determined, the mediator shall use his discretion taking into consideration the nature of the dispute, demands of the parties and necessary procedures and principles for a quick resolution of the dispute. Mediators are prohibited from actions that exclusively fall within the judicial authority of a judge, such as site examination, consulting experts or hearing witnesses. Mediators are not allowed to provide legal or professional advice to the parties; develop and impose or force to accept proposals, agreements for the resolution. The mediator is however entitled to inform one of the parties of a proposal made by the other party and receive the relevant party's opinion thereon. They are also entitled to recommend parties to revert to other means of dispute resolution.
At the end of the mediation process, a protocol shall be prepared on the outcome of the process. Parties shall agree on any further content of this protocol if any. The mediator shall report this protocol to the General Directorate of Legal Affairs of the Ministry of Justice.
Effect of Mediation on Time Prescription Periods and Pending Court Process
The period between the initiation and termination of the mediation process shall not be taken into account when calculating time prescription periods so that parties are not subsequently prevented from initiating judicial proceedings in relation to the dispute by the expiry of prescription periods during the mediation.
If during litigation parties declare their intention to go to mediation, the litigation process shall be delayed up to three months. This period can be extended for a further three months in case of joint request by the parties.
Enforceability of the Parties' Agreement
If the parties come to an agreement, they may request an annotation from the relevant court on the enforceability of this agreement. Such annotation gives the agreement the power of a court judgment. The examination for enforceability will be limited to (1) enforceability and (2) suitability for mediation. The application to the court for such annotation (and appeal against such decision on annotation) as well as stamp dues applicable to settlement agreements has been subjected to fix fees the amounts of which are rather ignorable as against variable fees based on the amount of the dispute (applicable in case of court actions and stamp dues on agreements).
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.