Mediation Process
Mediation Process
The mediation system, which is one of the methods concerning to resolve the disputes between the parties before these disputes be brought before the judiciary, attracts much interest in our country compared to the past and requires that all citizens, including lawyers, be informed on this issue.
However, unfortunately, it draws attention that many citizens do not know about the mediation system.
In our opinion, lawyers must play a major role in ensuring that the issue to be known to everyone.
In the rest of our article its is outlined the mediation process and it subjects in general terms.
Mediation Process
First of all, we find it useful to remind the disputes falls within the scope of mediation. In Article 1 (2) of Law No. 6325 on Mediation in Civil Disputes which reads; ‘This Law shall apply to the settlement of private law disputes arising out of the business or transactions on which the parties may freely dispose, including those with foreigners. As such, disputes involving the claim of domestic violence are not conducive to mediation.” a determination was made on which disputes are conducive to mediation and which of them are not.
In order to settle the dispute, the mediator selected as a result of the joint decision of the parties should examine the dispute in depth. It should be noted that the mediation process will begin with a joint agreement of the parties (except in the case of mandatory mediation required by law) and it will not be possible to apply for mediation by the insistence of one party. The mediator should explain the procedure to be followed at the meetings and emphasize that he/she is and will remain impartial. The mediator should try to solve the problems by listening to the parties and in case that the parties reach an agreement at the end of the meetings to be held, the mediator should assist the parties in the preparation of the agreement texts.
Subjects
At least three people are involved in the mediation process. Those people are; a mediator and parties of the dispute. Participation of the parties to the meetings is essential for a clear resolution of the dispute, but the parties may also represent themselves through their attorneys or participate with their attorneys instead of attending themselves. Except for the mediator him/herself, the parties of the dispute and the lawyers, it is also possible for people who have knowledge on the matter of dispute, to attend the meetings.
The main feature of the mediation system is the impartiality of the mediator. The mediator should have no interest / benefit in the outcome. The mediator should not establish a connection with any of the parties that may affect his/her impartiality. The mediator should put his/her personal values aside and approach the matter of the dispute in full objectivity.
Commencement of Mediation
Mediation will generally begin with the presentation of the mediator him/herself to those present at the meeting. The mediator then makes an introductory description of the mediation process and his/her role. The mediator's introductory explanations often include, among others, whether or not the debates in the mediation process are confidential or the extent of that confidentiality.
Following the introduction of the mediator, the agenda will be determined. At this stage, the parties or their lawyers, if any, provide individual explanations regarding the matter of the dispute. According to the explanations, the agenda is determined and if there is no situation that requires more people to attend the meeting or to collect extra information or documents, the issue of dispute is tried to be resolved in a single meeting. Otherwise, it would be possible that the meetings will last for weeks.
Meeting Models and the Role of the Mediator
Mediation meetings may take place in the form of either open or private sessions. Meetings in which both parties participate simultaneously are open sessions. In these meetings, the parties make their allegations and defenses to each other's faces.
However, in some cases, a special session is held upon the request of the parties or the mediator. In special sessions, the mediator negotiates with the parties one by one and shuttles between the parties. Mediators prefer special sessions in order to keep the environment calm in disputes where the tension between the parties may possibly amount to insult each other. Thus, he / she will be able to explain the claims of the parties to each other in a soft tongue. However, in both open and private sessions, the mediator must maintain his/her impartiality and approach both parties equally.
The language used by the mediator should be integrative; the mediator should not allow the parties to overheat; should not provoke the parties; even if being hidden under sentences he /she should not carry his/her own ideas, and should make sentences to lead the parties to a solution. When a party makes a proposal, he/she may urge the other party to consider the proposal. In addition, the mediator may him/herself make proposal and encourage the parties to meet at a common point.
Mandatory Documents in Mediation Process
First Minutes: A document issued at the time of the first session and signed by the parties or their representatives. Although it is not necessary to conclude the dispute in the first session, if the mediation process was concluded in the first meeting, the function of the first minutes could be fulfilled by the final minutes.
Agreement document: If the parties reach an agreement as a result of the mediation process, an agreement document shall be issued. The scope of this document shall be drafted by the parties and shall be of importance in terms of the ban of litigation in the matters agreed upon. Pursuant to Article 18 of the Law No. 6325 on Mediation in Civil Disputes published in the Official Gazette dated 22 June 2012 and numbered 28331; The agreement document signed by the parties and their lawyers and the mediator, shall be deemed as a certificate of execution without seeking an execution clause.
Final Minutes: The document indicating how the mediation process was concluded is called the final minutes. The mediation process should be recorded in the final minutes and signed by both the mediator and the parties. The plaintiff is obliged to attach the original copy or a copy approved by the mediator of the final minutes stating that no agreement has been reached at the end of the mediation process to the petition to be submitted to court regarding the commercial debts and claims for compensation.
Agreement and Fee
The mediation process involves written and signed agreements consequently. Everyone wishes that agreement be dispute resolutionary. The parties may prepare an agreement before the process and request that this agreement become valid within the process. As a result of the meetings, a new agreement may be concluded. In addition, the parties may also disagree and conclude mediation process.
There may also be agreements between the parties and the mediator regarding the determination of the fee to be paid to the mediator. It should be noted that the payments to be made should not be less than the fees stipulated in the mediation minimum wage tariff.
Pursuant to the 2019 Mediation Minimum Wage Tariff published in the Official Gazette dated 31 December 2018 and numbered 30642, the amount to be paid to the mediator per hour in employee and employer disputes is as follows;
- 170.00-TL per hour for the first three hours
- 120,00-TL for each following hour
If the parties agree at the end of the mediation process, the mediation fee shall be paid equally by the parties unless agreed otherwise. In this case, the fee may not be less than the two-hour wage set in the First Part of the Mediation Minimum Wage Tariff.
In the event that the parties cannot agree after the negotiations lasting less than two hours, at the end of the mediation process due to the fact that the parties could not be reached or the parties could not be interviewed as they did not participate, the amount of the two-hour fee shall be paid by the Treasury in accordance with the First Part of the Tariff. In the event that the parties did not reach an agreement at the end of the negotiations lasting more than two hours, the fee for the part exceeding two hours shall be paid equally by the parties in accordance with the First Part of the Tariff unless agreed otherwise.