What is mediation?
Mediation is a dispute resolution method that has been practiced in Europe and the United States for nearly 40 years. It is a process in which individuals with a dispute that is currently or may be the subject of litigation resolve the issue through mutual negotiations with a mediator.
How did mediation become part of the Turkish legal system?
In parallel with its development globally, mediation was a topic of interest and debate in our country, particularly in academic circles, by the late 1990s, and was the subject of much scholarly discussion and research, sparking the creation of scientific articles and reports. As scientific discussions and studies on the subject reached a desired level, a scientific commission was established to conduct legislative studies on the subject. Following extensive research conducted by the commission, which examined global examples, the “Draft Law on Mediation in Legal Disputes” was submitted to the Turkish Grand National Assembly on June 3, 2008, and was passed into law at its session on June 7, 2012.
What is the role of mediators?
Mediators implement mediation methods that facilitate communication between the parties and keep them at the table. They help the parties find their own solutions. In doing so, the mediator does not make a decision that resolves the issue or offer the parties alternative solutions. The mediator must be impartial and independent. A mediator should not mediate if they have a significant relationship with one of the parties.
Who can become a mediator, and what are the requirements?
In Turkey, only law school graduates with at least five years of professional experience can mediate. To become a mediator registered with the Ministry of Justice, they must receive at least forty-eight hours of theoretical and practical training from educational institutions licensed by the Ministry. After completing the training, those who pass the written and practical exam administered by the Ministry and are registered with the registry earn the title of mediator. Mediators in Turkey are subject to the Ministry of Justice for registration and oversight. Mediators pay annual dues to the Ministry of Finance. Practicing mediators are required to take eight hours of refresher training annually.
Which cases are covered by mediation? According to the Law on Mediation in Legal Disputes, mediation can only be used in cases where the parties can reach an agreement, waive their rights, and admit their allegations, and where a court order is not required. For example, because a court order is essential for divorce and child custody, parties cannot bring such matters to mediation. Furthermore, if the dispute stems from domestic violence and is not one of the crimes listed within the scope of mediation under the Code of Criminal Procedure, that case will not be suitable for mediation. For example, mediation is not permitted for compensation sought as a result of spousal violence, gunshot wounds, or crimes resulting in death. However, mediation is permissible for all credit agreements, sales and purchase agreements, consumer disputes, construction contracts, rental disputes, employee receivables, maritime and insurance disputes, trademark and patent disputes, property division disputes after divorce, and compensation claims arising from crimes such as negligent bodily harm, unarmed intentional bodily harm, insult, threat, violation of the privacy of the dwelling, disclosure of trade secrets, and other related offenses. As part of the Ministry of Justice’s efforts to make mediation mandatory as a pre-trial resolution method, mediation will initially be mandatory for employer-employee disputes. According to amendments expected to be introduced to Parliament in 2016, mediation will also become mandatory in labor cases. Cases filed without mediation will be dismissed without review.
When do people seek mediation?
People in a legal dispute can seek mediation whenever they need the assistance of a third party to resolve the dispute. In Turkey, mediation can be used before or during a lawsuit. If the parties reach an agreement during pre-trial mediation, there will be no further litigation. After the lawsuit is filed, the judge informs the parties about mediation. If they wish to proceed to mediation, the judge can postpone the hearing for up to two consecutive periods of up to three months. If the parties agree, the court adjourns the case, and the agreed-upon text remains in effect. If they cannot reach an agreement, the case continues where it left off, and the court decides on the matter.
What are the advantages of mediation?
Mediation offers many advantages, especially when compared to litigation. Due to these advantages, mediation is becoming increasingly popular both globally and in our country.
Mediation protects relationships between people. Because mediation is essentially an amicable solution, it prevents existing relationships from deteriorating and helps repair damaged relationships. Because the parties maintain communication in mediation, they have a high chance of finding a mutually beneficial solutio n that meets their wishes.
Mediation provides a quick resolution. While the court typically resolves cases within eight months or four years, mediation typically reaches a resolution within three hours to a week. Therefore, mediation is often preferred for a quick resolution of a dispute.
Mediation is cost-effective. Compared to the costs of litigation, attorney fees, and delays in obtaining justice, mediation offers a reasonable resolution.
Mediation is confidential. The opinions, documents, proposals, and admissions presented during mediation are confidential. Therefore, the parties can discuss any issue without hesitation. Therefore, mediation may be preferred for matters where public disclosure is a concern.
In mediation, the parties maintain control of the process. Agreements are reached only on matters agreed upon by the parties. Parties may withdraw from mediation at any time. No one can be forced to sign an agreement they do not want.
What is the cost of mediation?
The parties will pay the mediator’s fee and expenses equally. If the dispute can be measured in monetary terms, for example, in a case of 25,000 TL, the parties pay a total fee of 6% to the mediator. According to the fee schedule, this rate gradually decreases as the amount in dispute increases. For cases that cannot be measured in monetary terms, the mediator’s fee is paid hourly. This fee can range from 95 to 240 TL per hour, depending on the case and the number of parties. A fee below the fee schedule cannot be agreed upon with the mediator.
What is the process if one party fails to comply with the agreement after a successful mediation?
The mediation agreement is binding upon both parties upon signing. Withdrawal from this agreement is only possible with the consent of the other party, i.e., a new agreement. After the mediation agreement is signed, any party may apply to the court and obtain an enforceability clause on the agreement document. Once the court issues an enforceability clause on the agreement document, the mediation agreement document serves to initiate enforcement proceedings, similar to the enforcement of court decisions. Objections to these enforcement proceedings are not possible except in certain circumstances. As can be seen, if the agreement signed after a successful mediation is not complied with, it is possible for the creditor to initiate enforcement proceedings with the agreement document and, if necessary, to collect the receivable through seizure.