The Law on Mediation Regarding Legal Disputes dated June 7, 2012, published in the Official Gazette dated June 22, 2012 and numbered 28331 ("Law on Mediation") provides quite a number of similarities to the judicial mediation systems already in force in the European Union ("EU"). In the EU, the judicial mediation system is regulated under the Directive 2008/52/EC dated May 21, 2008 ("Directive") being the main legal document on this subject. The Directive was transposed into member states' national law through laws, regulations and administrative regulations and already became part of their national laws. Most of the EU member states have adapted similar mediation systems subsequent to this Directive, but our focus attention in this article is on the French and British mediation systems which are quite different from each other and also with the newly established Turkish mediation system.
Generally, the aim of initiating a mediation process is to bring in a third party to a dispute and make him/her hear each party's viewpoint in order to find a solution acceptable by for both of them while court proceedings are already underway. Mostly, prior consents of the parties are required to be obtained in order to initiate a mediation process. Therefore, if either of the parties to a dispute is not willing to initiate this process, then the mediation cannot be commenced. Alternatively, mediation can be commenced by the court by inviting the parties to resolve in the dispute out of court process. Of course by either of the parties or if a mediation clause has already been inserted into the contract under which the dispute arises.
Mediation "À la Française et à L'Anglaise"
In the United Kingdom ("UK"), the government has introduced two mediation processes in civil disputes depending on the value of the claim. In-house mediation is provided by the Ministry of Justice for small-claims disputes having a value below 10 000 pounds, and an accredited mediation as provided by the CMC ("Civil Mediation Council") for disputes having a value above 10 000 pounds.
In France judiciary mediation was established with the 8 February 1995 Law (Loi N° 95-125 du 8 Février 1995 Relative à L'organisation des Juridictions et à la Procédure Civile, Pénale et Administrative) by amending the Article 131/1 of the Code of Civil Procedure (Code de Procédure Civile). The referred law regulates a court ordered mediation process. The same law regulates the mediation for family cases by amending Articles 255 and 373-2-10 of the Civil Code (Code Civil). Adaptation of the Directive to French law, favoured the establishment of a voluntary mediation system by providing a set of general rules, and encourage a widespread use of mediation in resolving disputes. However, there is still no governmentally controlled body in France, similar to the Civil Mediation Council, as in the UK.
A profession requiring respect for fundamental rules
There is a European Code of Conduct ("ECC") describing good conduct and ethical rules for mediators to follow. ECC also ensures the major principles of the legal profession, human rights and confidentiality to be respected by the mediators. Article 4 of the Directive demands member states to encourage the proliferation of these national personalized codes of conduct. In France, the Paris Chamber of Commerce and Industry has put in place a similar list of guidelines so that the practice of the mediators provided under the Directive, is in compliance with its own law.
In the UK, one of the conditions to be accredited as a civil mediator is to submit to a certain code of conduct; naturally mediators often rely on the ECC as a model. The Family Mediation council have its own code of conduct to which their members have to submit.
From the search for mediation; to mediation training
The Directive urges EU member states to develop methods for training their professional mediators. Currently there is no specific training mediation in France apart from family mediation, which is conducted in training centres approved by the Regional Health and Social Services (Direction régional des affaires sanitaires et sociales) over a period of three years and which results in the acquisition of a Family Mediator's Diploma (introduced by Order 2 December, 2013). In the UK system is not very different, except for the fact that civil mediators are usually trained in the private sector (London School of Mediation or UK Mediation to cite two) and therefore have, their own regulations.
In the UK, between the Civil Mediation and the Family Mediation Councils are governmental institutions, and only provide assistance to the parties in their search for a mediator in a location suitable for them.
Clearly more economical!
In France the judge is independent when it comes to charging fees. If the mediation takes place during a court proceeding, then it may be covered, if necessary, by legal aid provided by Ministry of Justice. In such case the judge determines on the legal costs such as deposits and remunerations (judge mediation are regulated under Articles 131-6 and 131-3 of the Civil Code of Procedure) according to reports or statements of expenses presented to him/her (Article 119 of Order of the 19 December 1991). No national tariff exists for these sums but recently, some departments have put in place a tariff for family cases ranging from €5 to €131,21 depending on the content of the dispute. The British system presents a simpler definition for the cost, although free mediation does exist for those who cannot pay through legal aid. Usually, in civil cases, the fee is determined according to the subject of the dispute and the number of hours spent during the actual mediation process. The growth of mediation in both countries is mostly due to the speed and the low-cost provided to the parties trying to resolve their dispute.
Enforceable agreements quickening the system
Article 6 of the Directive states that member states must make it possible for parties that the written agreement executed at the end of the mediation process is legally enforceable. The agreement in itself must naturally be enforceable by law and must not be contradictory to the law.
In the UK, the Directive by the implementation of "The Cross Border Mediation Regulations of 2011" has made it possible for a written agreement to mediate to be directly enforceable, if the dispute is cross-border and one of the parties to the dispute is from a member state. However, if both parties to a civil dispute are from the same member state, then the agreement to mediate need to be endorsed by the judge and reviewed by the court, in order for the agreement to be legally binding on the parties.
In France, the binding nature of a mediator agreement is regulated under Article 1565 of the Code of Civil Procedure. The Law provides that the mediation agreement can be submitted to the court and once approved, becomes legally binding (pursuant to Article 131-12 of the CPC is the courts right to approve). When it comes to cross-border disputes, the same article 6 of the Directive is applicable which provides that mediation agreement is enforceable by law, in case one of the parties to the matter is from a member state.
An agreement reached
Once the parties reach to an agreement at the end of the mediation, the parties apply to the judge to obtain official approval for this agreement. The judge's approval may be sought by means of the request of all concerned parties, or that of one party, with the written consent of the second party. Once the judge's approval is obtained, the agreement is deemed enforceable and registered throughout the country where the mediation is and the European Union, if the mediation has been conducted in accordance with Article 6 of the Directive.
The French system provides the procedural rules of the approval of mediation agreements in Articles 1532 to 1535 of the Civil Code of Procedure.
The British system uses the same process. Once an agreement is reached by the parties through mediation, its enforceability can be demanded if both parties request so. The mediation agreement is formulated as a contract through British law and rendered enforceable and registered. The British system has its own coding of these regulations under Civil Procedure Rules 78.24 and grants permission similar to the French system.
Mediation "À la Turquie"
Mediation is defined as a voluntary dispute resolution method in the Law on Mediation which happens to be the leading legislation on mediation in Turkey. The purpose of introducing such a law is stated in the rationale of the law; "..... not to eliminate the application to the judicial bodies and resolve disputes in a simple and straightforward method without impairing the judicial authorities of the state." Mediation can be applied only in resolving private law conflicts, including those having a foreign element, arising from acts or transactions of interested parties having the capacity to settle them.
Unlike the British and French systems, no limitation on the amount or dispute type (except for the disputes regarding domestic violence) exists in the Turkish mediation system. With the amendment made in the Civil Procedure Law, the judge will invite the parties to a dispute to a settlement or mediation during the preliminary examination (on inceleme). The parties deciding on mediation as a method are free to proceed with the mediation, sustain and conclude the process or simply withdraw from the same. The parties have equal rights in their recourse to the mediator and during the mediation procedure and none of the parties can have a privilege against the other party.
To Become a Turkish Mediator
The Law on Mediation permits only the licensed mediators to mediate. The "mediators" must be registered with the Mediator Registry as maintained by the Mediator Department of the Turkish Ministry of Justice. Other requirements to be a mediator stated under the law. As compared to UK and France, Turkey has stricter conditions for becoming mediators and this practice is limited to certain professionals.
The mediators are entitled to ask for a fee to act as the mediator in a mediation process. Under the law, unless agreed otherwise, the fee for the mediation service will be determined in accordance with the Minimum Mediator Fee Tariff and paid equally by the parties to the dispute. Consequently, pricing of the mediation service in Turkey is determined by law. Under the UK and French systems, pricing for the mediation service is much more flexible and less regulated.
Ethical Rules for a Mediator
The Law on Mediation mandates certain ethical rules for mediators. For example; unless agreed otherwise by the parties, the mediator must keep confidential all the information, declarations and etc. submitted or acquired by any means during the mediation process. Also the mediation service must be performed personally and cannot be assigned to another party.
Although there is not a separate code of conduct provided on this topic law, the Law on Mediation contains certain provisions such as; advertisement ban, obligation to inform the parties regarding the mediation process and confidentiality rules to be abided by the mediators. The Directorate of Mediation of the Turkish Ministry of Justice prepared the "Committee of Mediation in Turkey, Mediation System and Code of Ethics for the Mediators and the Implementation" ("Code of Ethics") in March, 2013 as published in the website of the institution and provided for supplementary rules for the mediators on the subject matter. The Code of Ethics does not have a binding nature unless they are accepted by a court or other regulatory body; however, the mediators who are registered with the Mediator Registry must follow the respective provisions. If a mediator violates such provisions then an investigation can be commenced against the respective mediator by the Mediator Committee of the Directorate of Mediation and if any violation is determined then the violating mediator can be de-registered from the Mediator Registry.
Born to be a Mediator
The mediators must be law faculty graduates and must have attended to mandatory mediation education, including education on the fundamentals of mediation, communication skills, dispute resolution techniques, psychology, etc. This mandatory education is provided by law faculties, Turkish Bar Association and Turkish Justice Academy. Turkish institution that is willing to provide this education, must obtain the permission of the Turkish Ministry of Justice.
The mediators who successfully pass the written and the practical exams administered by Turkish Ministry of Justice, registered with the Mediator Registry and satisfying the other criteria under the Law on Mediation can act as "mediator".
Enforcement of the Decisions
Law on Mediation provides that if the parties come to an agreement at the end of mediation process, they may request an annotation on the enforceability of the agreement. Such agreement will be signed by the parties and the mediator. Also, the parties can apply to a court for the annotation on enforceability and the competent court will differ depending on whether the application was made before and during the lawsuit.
Countries consider mediation is an alternative dispute resolution method to their existing judicial systems. The reason for introducing this new alternative dispute resolution is to reduce the workload of the existing judicial institutions and also to resolve a dispute in a speedy and cost efficient way for its parties.
Obviously there will be different implementations of mediation and certain jurisdictions will rather prefer to be flexible and provide just a frame on mediation whereas the others may prefer regulating all the issues and leave less space for flexibility. No matter which approach is adopted, it is a fact that mediation will continue to be part of the dispute resolution methods and continue to provide swifter dispute resolutions.
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.