Alternative Dispute Resolutions ("ADR") are alternative methods that; an independent, objective and impartial third party provides the parties of the legal dispute to reach an agreement about the dispute by bringing them together and communicating with each other.
Dispute resolution in Turkey is a fundamental duty of State. For any dispute arising from a legal relationship between the concerned parties, application to the state courts is the initial and essential judicial remedy.
ADR have come up as an option for providing cost and time efficiency as compared to the judicial proceedings before state courts and for averting the disadvantages of the latter. ADR are optional dispute resolution proceedings and methods as compared to proceedings before State Courts. ADR aims simpler and faster resolution of the disputes without impairing the judicial sovereignty of the state.
The main difference between proceedings before State Courts and the ADR is that ADR as a rule is not binding for the parties so concerned unless otherwise decided by the same.
The procedures in ADR are not limited in number and type; each country may choose a method of ADR or create ADR method by taking their social and economic circumstances and facts into consideration.
ADR are allowed in Turkish Legal System unless they do not contradict with the Turkish Public Order.
Arbitration, Conciliation, Mediation, Mooting, Early Neutral Evaluation (ENE), Fact Finding Method and Med- Arb are widely used dispute resolution methods.
Arbitration, a widely used form of ADR, is a kind of dispute resolution method that the disputes arising between the parties are resolved by the arbitrators appointed by them instead of state's legal bodies.
Mediation, a wide applicable form of ADR, is a method in which the mediator provides better communication between the parties of the dispute. The mediator does not guide or direct the parties, or gives an advice or gives a binding decision like an arbitrator or a judge. The mediator only contents with asking directive questions to the parties' better communication with each other.
In case an agreement is not reached at the end of mediation process, the information and documents obtained from the deliberations cannot be used as evidence in a possible, future lawsuit.
Conciliation is a form of ADR in which an objective third party provides different solution offers which will take form according to the circumstances of the dispute and aims to provide the parties to reach an agreement as per one of these offers after negotiations and deliberations.
In conciliation, the resolution of the dispute by the parties themselves is the essential point.
In opposition to the mediation method, conciliation is based on right and rightfulness and the history of the dispute is taken into consideration. At the same time, conciliation method is less flexible than mediation method and is mostly based on provisions of law.
Negotiation is a type of ADR which is generally referred to initially in case of a dispute and it covers all methods of ADR. This type of ADR aims for the parties to settle the dispute between the same by negotiating and deliberating with each other with the attendance of their attorneys if needed, without intervention of any third party.
Negotiation is a kind of ADR method that each party tries to obtain a benefit for themselves at the end of the process by persuading the other party to act in the way the former desires.
Early Neutral Evaluation (ENE):
Early Neutral Evaluation is a method which is mostly used in the beginning of the dispute. In ENE, to enable the concerned parties to render a decision regarding the procedure necessary for resolution of the dispute via providing information by an experienced and objective third party to the parties of the dispute.
Fact-finding is a research method that aims to determine and clarify the dispute. Even if the dispute cannot be resolved with this method, it has its own complementary role for the other alternative dispute resolution methods such as arbitration, mediation etc.
When the parties have an uncompromising attitude, the fact-finder becomes a part of the dispute and prepares a comprehensive report indicating negative prospects of the dispute for the parties. In this method, generally, as fact-finder, an attorney, experienced in the legal field the dispute is related to, is appointed.
Med-Arb method is a combination of mediation and arbitration that aims to resolve the dispute via arbitration when the dispute between the parties cannot be resolved via mediation. This method is applied to when the rapid resolution of the dispute is sought.
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.