Turkey: Turkish Mediation Law

Last Updated: 5 February 2014
Article by Neşe Taşdemir Önder

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.

Fees

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.

Mediation Process

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.

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
Neşe Taşdemir Önder
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