Introduction
There has been a significant rise in the use of Alternative Dispute Resolution ("ADR") around the world over the last 30 years. ADR includes Arbitration, Mediation, Conciliation and Negotiation. With globalization and Turkeys' booming and competitive economy; Arbitration has become a familiar method of ADR within the Turkish jurisdiction. Mediation was not recognized as an ADR method in Turkey until early 2007, when the Turkish government commenced work on a draft law using the mediation model for the settlement of disputes.
As a result of these efforts, the Law on Mediation for Civil Disputes Numbered 6325 (the "Law") was announced in the Official Gazette on 22 June 2012 and came into force on 22 June 2013, a year after the announcement. With this development, for the first time in the country's legislative history, mediation has officially become another option for the resolution of legal disputes between parties.
Following the enactment of the Law, the Regulation regarding the Law on Mediation for Civil Disputes Numbered 28540 (the "Regulation") also came into force on the same date as the Law. In short, under Turkish Law, Mediation is regulated within the framework of the Law and the Regulation.
This article seeks to provide a brief introduction to the main characteristics and expected implementation of Mediation in Turkey.
What is the definition of mediation and mediator under Turkish law?
In line with the mediation definition of the International Chamber of Commerce ("ICC"), under the Law and Regulation mediation is defined as "a system of voluntary dispute resolution carried out with the participation of an impartial and independent third party; who is specially trained to convene the relevant parties by way of systemic techniques and with a view to help such parties mutually understand and reach a resolution through a process of communication" Likewise, the mediator is defined as "a real person who carries out the function of mediator and is enrolled in the register of mediators prepared by the Ministry of Justice. "
According to the Law and Regulation a mediator must:
- be a Turkish citizen,
- have a bachelor's degree in Law and at least 5 years of seniority in profession,
- have "full legal capacity",
- have a clean criminal record,
- have completed the training session on mediation; and
- have passed the written and oral exam set by the Ministry of Justice.
In addition to the above mediators are required to perform their duties personally, attentively and independently during the mediation process. Therefore, mediators are prohibited from assigning their duties, even partially, to any third party.
How is the mediation process conducted?
a) Not all civil disputes can be settled through mediation process;
It is important to point out that not all of civil disputes can be settled through the mediation process. Pursuant to Article 1 of the Law, mediation can only be applied to private law disputes arising from the transactions that parties may perform with their complete freewill. Thus, any legal dispute in relation to a transaction in which the parties did not have authority to act with their freewill cannot be settled via mediation process. For example, a criminal case or an administrative proceeding cannot be resolved with mediation. Article 1 of the Law further states that disputes in relation to domestic violence are not capable of being settled through mediation.
b) Parties are to decide whether to mediate the dispute or to litigate;
Parties in a dispute can freely decide whether to mediate or litigate the dispute in question. According to the Law parties may apply mediation during or before the legal proceedings. Likewise, parties can always freely withdraw from mediation process at any time. Although it is at the complete discretion of parties to decide on how to settle their disputes, during the litigation process the judge may encourage and guide parties to try mediation.
Unless otherwise determined, the parties are free to select the mediator(s) jointly. The designated mediator is required to call an initial meeting with the parties as soon as possible. Furthermore, parties can also decide on the method of mediation to be applied in their proceedings provided that such method is not against the mandatory legal provisions. If the parties do not determine the method, then alternatively, the mediator(s) carry out the mediation process by taking into account the nature of the dispute, the wishes of the parties and apply procedures and principles necessary for the rapid resolution of the dispute.
c) Termination of Mediation;
In light of the foregoing explanation, parties may always mutually decide to end the mediation process and accordingly Article 17 of the Law lists the grounds available for termination of the mediation process.
Termination grounds are as follows:
- if the parties reach to a settlement,
- upon the written declaration by the mediator(s) stating that it is no longer worthwhile to continue the process,
- upon the written notification by one of the parties to the mediator(s) or the other party expressing the intention of withdrawal,
- upon the joint request of both parties to end the proceedings,
- upon the determination that the dispute is not appropriate for mediation or is in relation to a crime which falls out of the scope of mediation in line with the Code of Criminal Procedure.
d) Confidentiality Requirement;
Article 4 of the Law clearly states that unless otherwise is agreed by the parties, the mediator(s) shall be obliged to keep all information , documentation or any other forms of information arising out of or in connection with the mediation proceedings confidential. The confidentiality duty applies to any third party who is involved or has access to or attend the mediation proceeding.
Furthermore, Article 5 of the Law sets out the list of the documents and oral statements relating to the mediation process which cannot be called as evidence or used in witness reports in any subsequent court hearing or arbitration proceedings.
Finally, Article 33 of the Law regulates penal sanctions for those who violate the confidentiality duty stated under the Article 4 of the Law. Therefore, the individuals who infringe the rights of another individual by violating the provision of Article 4 of the Law, shall be sentenced to six months in prison.
e) Enforceability;
At the end of the mediation process, the parties and mediator(s) may sign an agreement which incorporates the details of the settlement agreed by the parties. The enforceability of such agreements as the verdict of a court depends on whether the parties requested an enforceability annotation on such a settlement agreement. If the parties commence the mediation before litigation then the annotation should be requested from the court to be determined in accordance with provisions of competence and venue in relation to the dispute. On the other hand, if the parties commence the mediation during the litigation, then the annotation should be requested from the court where the lawsuit is pending.
Conclusion
Recognition of mediation as one of the legally acceptable methods of ADR is a significant step for Turkey in the long marathon of harmonizing its legislation with the European Union. Mediation has many advantages not the least its cost effectiveness and potential efficiency. The mediation processes focus on future by preserving the rights of the parties. It has less psychological and sociological risks in comparison with legal proceedings and gives more opportunity to the parties to maintain their social and economic relationships. Moreover, the confidentiality requirements enable parties to discuss matters which they may normally feel reluctant to bring before the court. The parties can determine the mediation method and accordingly control how the mediation will develop and end.
Nevertheless despite all of these advantages of mediation, it is still too early to decide whether mediation will serve as an efficient and proper method to settle disputes in Turkey. Mediation is referred as "Justice without Court". However, it is still ambiguous as to whether the Law will meet the expectations and reduce the heavy workload of the courts whilst effectively resolving disputes.
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.
