Mediation As An Alternative Dispute Resolution In Administrative Conflicts


Mediation; is a discretionary method of dispute resolution carried out as a public service which aims to bring together the parties in order to negotiate by applying systematic techniques and to establish a communication process between them in order to ensure that the parties understand each other and thus produce their own solutions,to bring forward a solution if it appears that the parties failed to produce one.Mediation activity; is carried out with the participation of an impartial and independent third party.The Parties shall participate in the activities by themselves or by attorneys, and the administrations shall participate through the commissions to be formed.

Unlike private law, there is no equality between the parties in administrative law and administration occupies a superior position and power against the individual party.However, the administration cannot benefit from this position and power in every transaction.Not all transactions of the administration are of administrative nature. The Administration takes part in the status of private legal entity in some of its legal transactions.This means that the administration does not have any public power in this process.In case of disputes concerning the private law to which the administration is a party without relying on public power, civil judiciary shall be applied instead of the administrative judiciary.It is stated that mediation can be applied within the framework of the disputes mentioned in the regulation of Law on Mediation in Civil Disputes.As it is understood here, not all disputes to which the administration is a party shall be referred to mediation.For example, in the case of Administrative damages and annulment proceedings, the mediation method will not be applied in the same way in the case of tax law cases in which the public power is at an extreme stage mediation is not applicable.

Application of Mediation in private law disputes to which the administration is a party can be studied in many ways in terms of its advantages and disadvantages.First, the power used by the administration needs to be effectively supervised.It is clear that the most important control mechanism of this supervision is the judicial control.As set out in the Constitution Article 125, the way of judicial remedy is open against all actions and procedures of the administration.However, both due to the workload of the courts and the excessive use of time and expenses, alternative dispute resolutions is seem to be necessary in such disputes.Normally, the obligation to apply to the superior authority before applying for administrative judicial proceedings against administrative procedures was regulated to ease this burden of the judiciary.Butin the private law transactions of the administration, there is no such authority.Mediation comes to the stage as a solution at this point.

Firstly, The fact that the mediation process to treat the parties equally and impartially will result in the administration having equal status with the counterpart, which will be a more useful method of ensuring the mutual interests of both parties.The administration shall either express its wishes and suggestions effectively to the other party by means of the commission representing it and it shall not be able to exercise its privileges arising from public power as it has equal status.It is also evident that no solution will be as fair and satisfactory as the solution arising from the mutual agreement of the parties.The settlement of the conflict in a friendly manner will increase the respect of those governed to the public authorities and rules as an appearance of ensuring social peace.

Secondly, the processing of mediation activities is under the control of the parties. This means that if the agreement cannot be reached, in any case, the dispute will be subject to legal proceedings provided that the legal deadlines were complied with.

Another advantage of recourse to mediation process in these disputes would be the gain in terms of time. Due to the workload in our courts, the disputes that can only be solved in a long time will be resolved in a short time during the mediation process.

Another point is that financial burdens are at a minimum level when the mediation method is applied.Notification costs and court fees in a normal case are not included in the mediation.Mediators receive the amount specified in the Mediation Minimum Wage Tariff.In addition, in cases where mediation is regulated as a pre-condition of the lawsuit and the parties failed to agree the first two hours' fee is paid from the Ministry of Justice budget. The advantage of mediation in cases where the Administration is a party is not yet available as the mediation is not provided as pre-condition of litigation in such cases, but in order to point out the advantages to be benefited by the parties if such an arrangement is accepted in respect of these cases, it would have been appropriate to address this matter.

Although mediation has such advantages, one of the biggest challenges for its expansion in administrative law is the question of whether public power is exercised in terms of dispute in question.Mediation may be applied for all disputes in which state power is not exercised.The same distinction also exists in French law; zoning, environment, hospital responsibility disputes, civil servants' small disciplinary penalties, land intrusion compensation cases, occupation cases, public procurement, public tenders, private sector jobs are considered to be eligible for mediation in French law.1

One reason for the failure to resort to mediation in these cases is that the parties are of the opinion that the principle of equality of arms shall not be applied in this process and that they have reservations about the execution of decisions agreed upon at the end of the negotiations.However, these issues are clearly provided in Law No. 6325 and equality of the parties is essential in the mediation institution and since the minutes held at the end of the process is a document having the power of court judgment, it provides a solution in this regard as well.

One of the negative factors in this matter is that the administration also has difficulty in adopting a mediation system which is a new solution by abandoning its deep-seated practices over the years.

As a result; due to the fact that mediation in private law disputes to which the administration is a party is yet a new method and either because it is difficult for Administration to leave its traditional practices, and because the citizens do not have enough information about the mediation, As such they are not aware of its benefits and therefore do not prefer this remedy.However, it is seen how advantageous mediation is because it is both time and cost efficient, and the legislator considers the equality of the parties in this process, and the parties can obtain the certificate of approval as a result of the mediation negotiations having the power of court judgment, it is also advantageous to prefer as it is a method for the parties to have the best interests.


References

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6. Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu Yönetmeliği(2018),T.C.Resmi Gazete, 30439,2 Haziran 2018.

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