Turkey: Shortcut Verdicts, Europeanized Mediation System; Swifter Dispute Resolutions in Turkey

Last Updated: 30 December 2014
Article by Serap Zuvin, Selim Dayioglu and Can Sidgwick

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.

Why Mediation?

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.

Equivalent

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.

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.

Authors
Serap Zuvin
Similar Articles
Relevancy Powered by MondaqAI
Gün + Partners
Bezen & Partners
 
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 Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Gün + Partners
Bezen & Partners
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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