Mediation in Turkey
What is Mediation in Turkey? How to become a mediator, which matters (disputes, disputes) can be resolved with mediation? Who becomes a mediator? What are the effects of mediation on our daily lives? This article deals with the answers to such questions.
One of the alternative dispute resolutions in Turkey is mediation. Although it is a new practice in Turkish Law, it is rapidly spreading day by day. Mediation is a peaceful settlement of disputes and in such process of seeking peaceful resolution to disputes significant obligations fall on all parties (applicant, opponent of the applicant, creditor, debtor, defendant, plaintiff, judge, judicial personnel, the mediator, etc.).
Mediation as a Concept
The mediation is a process of resolving disputes flexibly through an independent and impartial third party called mediator. Mediation, by the way of resolving the communication problems of the parties provides an opportunity to discuss the problems, to present proposals and to reveal the areas that can be agreed upon. The mediation process is run predominantly on voluntary basis. In mediation, the mediator has no authority to adjudge on the matter of dispute.
What are the Advantages of Mediation and Benefits to the Parties?
Mediation offers many important advantages in comparison to judicial proceedings we know.
Mediation is faster than judicial cases lasting for months or even years and is completed within a few days or a few weeks. Resolving the disputes in a short time and returning the parties to their daily lives provides the opportunity to reduce the psychological and sociological negative effects of the disputes.
Moreover, the mediation process is more economical than the judicial proceedings. It is a lower cost process as there will be no expenditures of the trial phase, such as discovery, expert witness and witness fees, which should be paid at the beginning of the proceedings. Likewise, , the costs that the case parties spent participating in the hearings during the long-term trial process like labor, time, way, and so on are minimized in this process.
The parties who could not find an opportunity to express themselves in the judicial process can express themselves freely during the mediation process and listen and understand the other party. Mediation is a flexible process.
Thanks to the mediation institution, it is ensured that the workload is reduced, the process is faster compared to courts and parties are happier.
Since mediation is a co-operative and non-contentious process and does not necessarily have to result in one party winning and the other losing, it is often possible to maintain relations between the parties of the dispute.
Furthermore, unlike the trial proceedings, the control of mediation is entirely in the hands of the parties. This means that the parties have much more say in the negotiations and have more control over the outcome. There are no winners or losers in the process; the parties do not have to admit that they are right or wrong. The agreement is made with the consent of both parties and, therefore, the satisfaction level of the parties in mediation is generally higher. Conversations made in front of the mediator cannot be used in court because they are confidential. Therefore, the parties have the freedom to speak freely.
What is the Function of the Mediator?
The mediator serves to provide communication between the parties. The mediator, who is in effective communication with the parties, supports the establishment of communication between the mediating parties; draws attention to the needs and interests of the parties. The mediator brings the parties together in a quieter and more intimate environment.
Principles of Mediation
The mediation system came into force in 2012 in Turkish Law. The prevailing opinion suggests that the facilitator mediation model is adopted in our country. However, Law no. 6325 is regulated to a large extent to meet the requirements of modern mediation, which ensures that all principles governing mediation are provided for in the law. The principles detailed in the law can be listed as follows:
1-Willingness, that is, the free will of the parties to start, walk and end the process.
2-Equality, that is the parties are equal to each other, not higher than each other.
3-Confidentiality, according to this rule, interviews are confidential, not open to unrelated persons.
4-Statements and documents cannot be used in public court.
Who becomes a Mediator?
The conditions for being a mediator are:
- To be a Turkish citizen,
- To be graduated from the Faculty of Law and to have at least 5 years of experience in the profession,
- To be fully mentally capable and not to be convicted of a deliberate offense,
- To complete the mediation training and pass the written and oral exams held by the Ministry of Justice.
The Place of Mediation in Our Legal System
Mediation began to be applied to the Turkish Legal System on 22 June 2012 with the entry into force of the Law No. 6325 on Mediation in Civil Disputes and the publication of the Regulation on Mediation in Legal Disputes on January 26, 2013. With this legal amendment, it is aimed that the parties will be able to compromise without the need for long-lasting litigation.
What Types of Litigation Are Eligible for Mediation?
Pursuant to Article 1 of the Law on Mediation, private law disputes arising from the actions and transactions that may be freely disposed by the parties, including disputes involving foreign elements, are eligible for mediation.
The legal action and transactions on which the parties can freely dispose; in other words, it means that the parties ability to perform legal transactions such as settlement and acceptance in a private law dispute without a need for a court decision, and the unification of the wills of the parties may produce result without a court judgment.
Today, the mediation is mostly applied for cases involving debts stemming from employer-employee relations such as severance notice, salary, overtime, and commercial debts arising from commercial relations. It is thought that the field of activity of mediation will expand each year. However, not all disputes are suitable for mediation e.g. disputes involving domestic violence are not conducive to mediation.
The concept of public order alone is not sufficient to understand whether the conflict is conducive to mediation. Filling this concept will vary with each concrete event. This matter will be determined by the case-law of the Court of Cassation and the case-law of the Regional Courts of Appeal.
Can you go to mediation during a trial (case) process was still pending?
The mediation applied during the trial (case) process is also called “Court Based Mediation”. Parties to dispute; can either apply to the mediator before or after the trial process has started.
If the parties agree through mediator before the case is opened, there is no need to file a case. However, if no compromise took place, the parties will have to resort to litigation process to reach a settlement.
If the parties did not apply for mediation before the case is opened, they are to be referred to mediation by the judge after the case is opened. If a compromise occurs as a result, the agreed conditions are accepted and the case does not need to be continued. However, if there is no compromise, the proceedings will continue, and the parties will be reconciled through the judicial proceedings.