Article 35/A of Attorneys' Act No. 1136 regulates the conciliation procedure that carried out by attorneys. The regulation in question is as follows:
Attorneys shall invite the other party with their client to conciliation regarding the cases and proceedings that referred to them before a lawsuit is filed or before first hearing held, only in the issues that the parties may obtain as a result of their own will. If the other party responds to the invitation and they reached a conciliation, the minutes shall include the subject of conciliation, place, date and the atter to be fulfilled by both parties shall and be signed jointly by the attorneys and their clients. These minutes have the characteristics of a judgment pursuant to Article 38 of Execution and Bankruptcy Law dated 09/06/1932 and Law No.2004.
Conciliation which is regulated under the Attorneys' Act is a procedure that the attorneys of the parties come together upon the request of the parties and all procedural and substantive issues within the scope of the resolution of dispute before the lawsuit is filed or the first hearing is held. The conciliation must be recorded in a minute that shows this agreement between the parties.
This article explains what the conciliation is, its legal characteristics, its procedure, the conciliation minutes and its binding nature.
The Scope of Conciliation
Conciliation is applicable in disputes that do not derive from public order and where the parties may obtain the result of the claim with their own will (by conciliation). In this respect, conciliation is possible especially in disputes regarding money receivables. Pursuant to the Attorneys' Act, conciliation is possible in disputes for which a lawsuit has not been filed or the first hearing has not been held yet within the scope of Article 35/A.
Conciliation Negotiations
The attorney of the requesting party shall notify the other party in writing of the intention to conciliate that indicates the subject matter of the dispute. In the notification, the time and place for conciliation negotiations shall also be indicated. The party receiving the reconciliation invitation shall notify the other party of its positive or negative response within two weeks. If no response is given within this period, the invitation shall be deemed as negative. Following a positive response from the other party's lawyer on conciliation, the parties' lawyers meet at a pre-agreed location. The participation of the parties themselves is not mandatory. However, the fact that the party attends the meeting in person does not mean that attorney of the attendee does not have to attend the meeting.
It is necessary to underline the fact that the conciliation is a procedure conducted entirely by the attorneys of the parties and the participation of the attorneys of the parties to the meeting is mandatory. Even if the parties are willing to continue the conciliation procedure, if one of the attorneys does not want to continue the process, the conciliation procedure would not continue. The fact that the attorney is an essential feature in the conciliation procedure is the most important criteria that distinguishes conciliation from voluntary mediation. Likewise, the party may attend the meeting in person and prepare and sign the final minutes in mediation but in conciliation, the parties cannot attend the meeting without attorney and prepare and sign the minutes of the conciliation.
Conciliation negotiations must be held until the first hearing. Although the attorneys meet upon the request of the parties after the filing of the lawsuit and the first hearing and reach an agreement on the resolution of the dispute, this meeting cannot be considered within the scope of Conciliation as stipulated under Article 35/A of the Attorneys' Act.
Participants in the conciliation process are obliged to keep confidential all kinds of information, documents and all records prepared and presented to them orally or obtained in any way. The matters submitted by the parties and the attorneys during the conciliation negotiations may not be disclosed by the attorneys in any way. Otherwise, the lawyer would be liable.
Statements or explanations made by the parties or attorneys during the conciliation period may not be submitted as evidence in the case of a lawsuit is filed after the parties do not conciliate. For example, the debtor may have acknowledged that he/she owes a debt and promised to pay it during the conciliation negotiations be held for the resolution of a dispute which the subject is a money debt However, this statement cannot be submitted as an acknowledgment of debt in the lawsuit to be filed if the parties do not reconcile.
MINUTE OF CONCILIATION
After the conciliation negotiations are concluded, a protocol is prepared by the attorneys for the resolution of the dispute, this protocol is defined as the 'minutes of conciliation'. The information that must be included in the reconciliation protocol is as follows:
- The statement that the minutes are prepared in accordance with Article 35/A of the Attorneys' Act,
- Information of Parties (name, surname, Turkish Republic ID numbers, addresses)
- The names, surnames, bar associations and registration numbers of the attorneys of the parties,
- Place and date of the minute,
- Summary of the claims and defenses of the parties and the dispute and conciliation,
- Rights and obligations of the parties as an outcome of the settlement,
- The conciliation minutes in accordance with the Article 38 of the Bankruptcy and Enforcement Law, have characteristic of judgment,
- How the costs of conciliation and/or litigation will be covered by the parties,
- Signatures of the parties and their attorneys (Even if the parties were not present at the meeting, the minutes must contain the signatures of the parties)
- The number of copies of the minutes and the number of copies given to the parties and the attorneys.
Legal Characteristic of Conciliation Minutes
The minutes of conciliation have the characteristics of enforceable judgment pursuant to Article 38 and Article 68/A of the Enforcement and Bankruptcy Law. In other words, if one of the parties fails to fulfill the obligation stated in the conciliation minutes, the other party would have the right to subject the conciliation minutes directly to enforcement proceedings as a court judgment. In this scope, even if there is no 'enforceability annotation' in the conciliation minutes, the minutes would still have the characteristics of a judgment.
Even if a conciliation minute is prepared, if the parties do not conciliate in the final, the conciliation minute would not be valid.
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.
