Mediation as an alternative dispute resolution has been
regulated by European Union Directive 2008/52/EC providing the
application of mediation for civil and commercial cases in the
member states of the European Union ("EU"). In some of
the Member States of the EU the mediation is recent and has been
regulated short time ago by their national laws and mediation has
been enacted by a separate law.
Mediation as alternative dispute resolution
Mediation is one of the alternative dispute resolutions which
may be implemented only for civil cases. In the EU-Law, the
mediation has been defined as "a process whereby two or more
parties to a dispute attempt by themselves, on a voluntary basis,
to reach an agreement on the settlement of their dispute with the
assistance of a mediator." Accordingly, mediation serves to
resolution of a civil case through a third party or third parties
(mediator) without requirement of a court procedure.
Mediation in Turkish Law
A legislation in mediation which has been awaited since long
time in Turkey has entered into force in 2013 and regulates the
terms and conditions for mediators and mediation. This law has been
brought into force within the frame of harmonization of Turkish
laws with the EU legislation. Accordingly, only the persons which
fulfill the requirements stated by the Mediation Law may practice
the profession as mediator.
In Turkish law system, the use of this alternative dispute
resolution may be decided by the parties freely and they are
subject to equal terms and conditions during the whole mediation
process ("equality principle"). Moreover, mediation may
be used only for civil cases, whereas the cases which include the
claims regarding family violence are not subject to the mediation.
In accordance with the above mentioned EU-Directive, this Law is
applicable also to the civil cases involving a foreign element.
Other principles concerning the mediation are:
Ban on advertising of mediators:
Pursuant to the Mediation Law, mediators' advertising
authorities have been limited such that they are not entitled to
use other titles than mediator, lawyer and academic titles.
Confidentiality: Mediators and
parties are obliged to keep all documents, information which have
been submitted or obtained with respect to scope of the mediation
Obligation to exercise diligence and principle of
objectivity and independency: Pursuant to the
Mediation Law, mediators are obliged to fulfill their duties
objectively, personally and carefully. In case of a court case in
the same subject in which they were appointed as mediaor they are
not entitled to be appointed as lawyer, judge or expert.
Duty to provide clarification of parties about the
mediation period, its legal principles and legal
conclusions: Mediator is obliged to inform the
parties about the mediation procedures, legal principles and
conclusions and about the document that will be issued after the
mediation procedures at beginning of mediation processes.
Duty to keep the documents.
Comparison with European Civil Law Systems
In european law systems, there are diverse systems regarding the
mediation: System where the mediation is encouraged to the parties,
system where the mediation is subject to the free decision of
parties and system where the mediation is an obligation for certain
cases. As an example, in several countries tax and other financial
incentives are offered to the parties in case that they benefit
from mediation prior to filing a lawsuit. In Italy, the question if
mediation shall be mandatory has often come to the fore and this
subject has been discussed frequently.
In Germany, the Mediation Act ("Mediationsgesetz") has
entered into force in 2012 which regulates the voluntary mediation.
This law has been brought into force as adoption of the
EU-Directive 2008/52/EC into German Law. The obligations of a
mediator have been regulated similarly to the Turkish Mediation Law
with a difference that advertisement limitation has not been
regulated which has been regulated in Turkish Mediation Law. In
France, Greece, Italy and most of other EU Member States the
implementation of this Directive has been completed.
Should mediation be obligatory?
The entering of the Mediation Law in Turkey may be regarded as a
positive progress in Turkish Law. Since litigation may cause high
expenses and it takes long time in general, extrajudicial
alternative dispute resolutions are regarded as a better resolution
method for legal disputes. If mediation should be compulsory, has
been discussed in several jurisdictions. In consideration of its
advantages such as it is satisfying, quicker and it has less
expenses, making the mediation compulsory for certain types of
cases may be acceptable and a positive development for the legal
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.
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