Mediation is a discretionary method of dispute resolution commonly used in the justice system of the developed countries which involves alternative resolution of disputes bringing the parties together in order to discuss and negotiate by applying systematic techniques, which establishes the communication process between them in order to ensure that they understand each other and thus produce their own solutions and run on voluntary basis with the participation of an independent and impartial third party who is educated as an expert in this field.
In the mediation, which includes the principle of voluntarism, the areas that must be compulsorily resorted have been identified, apart from this, it has been the reason of preference in the name of achieving fast and satisfactory results based on the satisfaction of both parties and not retarded neither by citizens nor by lawyers. So, it has started to find a trend in our country and in the world for the settlement of disputes through friendly and peaceful means and has become a more popular option.
In terms of Mediation in Family Law;
When we consider the mediation system in terms of Family Law, it should be mentioned first that it has not found any application in our law yet. However, as in many other areas, mediation should be established and start functioning within the scope of family law. It will be healthier to take into consideration the arguments opposing the concept of mediation in Family Law and to make evaluations taking these arguments into account.
It is objected that the mediation institution will find not application in the Family Law primarily on the grounds of public order and with the following articles of law;
• Article 48/1 of the Istanbul Convention. Article “States Parties shall take the necessary legal or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and mediation in acts of violence under the Convention”,
• Article 1/2 of the Mediation Act. stating that; so far, disputes involving the claim of domestic violence are not conducive to mediation, declares that compulsory alternative dispute resolution methods are prohibited in violent disputes.
Also, some argue that;
Article 137 of HMK “A preliminary examination is carried out after mutual application of the petitions. In the preliminary examination, the Court examines the circumstances of the case and the first objections, determines the dispute issues in full, conducts preparatory proceedings and takes the necessary actions for the collection and submission of evidences by the parties. Encourage the amicable agreement in cases where the parties can freely dispose and record these matters in minutes and that the judge has the authority to encourage the parties to agree and in view of the above that the mediation is not necessary.
For all these reasons of main issues, the alternative dispute resolution which is mediation in Family Law is opposed. However, although these arguments are justified in terms of violence, it is not appropriate to deprive mediation of all areas covered by Family Law.
As very simple examples there are some issues including divorce cases, property regimes, custody, alimony, etc. under Family Law. Even if there are violence and similar issues in divorce cases, except in such areas where victim will be further victimized. It will be appropriate for the parties and the judiciary to allow mediation. For example, even in an ordinary contentious divorce case, as often encountered today, the contents of the petition may include statements reaching up to insults. The parties experience the concept of being adversaries in its slang term rather than legal adversaries before the court and they regret the words and allegations written in the petitions as a result of many cases and the rendered divorce judgments.
In the same way, as it was possible fort the both parties to have common and more reasonable results in the implementation of the property regime and custody, the parties are more sensitive and tense during the trial and therefore judgments given as a result of these proceedings cannot fully strike the balance between father- child and mother-child. However, we believe that the institution of mediation promises appropriate and common solutions for those who are at a level that can be overcome, and that the protection of child psychology and health with the common will of the parties (parents) will provide healthier results in terms of custody and establishing a relationship with the child.
When it is considered such aspects as avoiding the absence of the consequences of long-lasting and regrettable proceedings after months and sometimes even years leading to tense and restless processes, resolving the child's psychological condition on a healthier basis by a joint decision, and paying alimony pursuant to agreed conclusions reached in consensus, reasonable and willfully accepted rather than given mandatory judgments. Family law, which is derived from the concept of family, the cornerstone of society, and is the body of rules within the framework of this concept, the family law must be shaped by the conclusions reached by joint decisions which will not shake the family members rather than the definite judgments not always capable of satisfying the parties will be healthier for society and individuals.
It should be noted again that although we advocate the mediation system which is an alternative dispute resolution method within the Family Law, it should be paid attention in legislation process that the lawmaker should consider victims of violence and those subjected to spiritual violence differently in order to protect their rights and freedoms and to compensate their losses and ensure the application of the mediation in terms of Family Law, except for such matters.
The aim of mediation is to provide a quick solution based on the satisfaction of both sides by keeping peaceful, joint decisions away from the slow functioning of the judiciary. In order to ensure that individuals grow up in every aspect of their material and spiritual well-being, the concept of family, which is the most important institution of the society, is not based on the rigid walls of Family Law, but on solutions understood and involving shared satisfaction are essential.
For these reasons, we believe that the Mediation, which is an Alternative Dispute Resolution, should be applied in terms of its parts compatible with the Family Law.
References:
1-Law of Advocacy
2-Mediation Law
3-Istanbul Convention
4-Law on Civil Procedure
5-The Article of Istanbul Bar Association Women's Rights Center