Lara Candoğan

Attorney

04.07.2023

Current Mediation Processes İn Turkish Law

In Turkish law, mediation is one of the effective and fast alternative dispute resolution methods. The mediation process is regulated in detail by the Mediation Law No. 6100, which entered into force in 2013. Law No. 6100, while defining mediation, determines in which cases mediation activities can be used, the powers and duties of the mediator, the stages of the process and what kind of legal status it will gain in case of reconciliation.

In the most general sense, mediation is a set of voluntary methods in which a neutral third party brings the parties together in a suitable environment for them to negotiate and agree, and enables them to find their own solutions in order to reach an interest-based solution to the dispute between the parties. In this respect, mediation can be defined as a facilitated negotiation assisted by a neutral third party. Mediation is a peaceful means of settlement because it ends the dispute in a solution that the parties peacefully agree upon together. Mediation can be used in various dispute areas and is an effective solution method in many areas such as business, trade, family, inheritance and real estate.

A.    MEDIATION

Before proceeding to explain the mediation process, it should be noted that mediation is a voluntary alternative dispute resolution. Even in the case-condition mediation (mandatory mediation), which will be discussed in the rest of this article, the continuation of the process and the parties reaching an agreement are voluntary. Because no one can be forced by others to resolve a certain dispute. We can summarise the mediation processes in general as follows;

1.      Agreement of the Parties to Mediation: According to Article 13 of the Mediation Law No. 6325; the parties to the dispute may agree to apply to the mediator both before and after the lawsuit is filed. Therefore, we can say that the mediation institution can be applied at every stage of the dispute as long as the parties agree to go to the mediator. If a lawsuit is filed regarding the dispute between the parties, the court may also inform or encourage the parties to apply to the mediator. Or one of the parties to the dispute may make an offer to the other party to apply to the mediator before or after the lawsuit is filed. Pursuant to Article 13 of the Law No. 6325, if the offer to the other party to apply to the mediator is not responded positively within 30 days, it is deemed rejected. If the parties declare that they will apply to the mediator together after the lawsuit is filed, the trial is postponed by the court for a period not exceeding three months. Again, according to Article 15 of the Law No. 6325, this period may be extended up to three months upon the joint application of the parties to the court again.

2.      Determination of the Mediator by the Parties: In mediation, a neutral and independent third party who is an expert on the subject of the dispute, or who knows the subject well even if he/she is not an expert, conducts an examination and supports the parties for a solution. The parties can feel safe even for this reason alone. The parties may apply to the mediation centres established throughout Turkey to apply to the mediation process and choose a mediator from there. These centres manage the mediation process, keep a record of mediators and organise mediation trainings. The mediator must be authorised to mediate and must be an impartial and independent person.

3.      Request to the Mediator by One of the Parties: After all parties agree to participate in the mediation and the mediator is selected by the parties, one of the parties makes a written or oral request to the mediator to initiate the mediation process. 

4.      Acceptance of the Mediator: After receiving the request for mediation, the mediator assesses the application and decides whether to accept the process. 

5.      Preparation of the Parties: Before the mediation process, it is important for the parties to prepare for the mediation. The parties should provide the mediator with documents and necessary information to be used in the negotiations.

6.      Meeting of the Parties: One of the most important stages of the mediation process is the meetings where the parties come together and try to resolve the dispute. The parties and the mediator come together and discuss the reasons for the dispute, the expectations and demands of the parties.

7.      Mediation Meetings: In the meetings where the parties come together, negotiations are held with the mediator. The mediator ensures the communication of the parties, listens and proposes solutions. The parties can express their own demands in the negotiations.

8.      Reaching a Settlement: In the mediation process, the parties try to find a common compromise point to resolve their disputes. Communication and negotiations are carried out between the parties under the guidance and direction of the mediator. The parties try to reach a compromise by considering their own interests. If the parties reach a compromise, a settlement text is prepared by the mediator.

9.      Approval of the Settlement Text: The settlement text becomes an official document with the signature of the parties. The parties agree that they will be bound by the provisions in the text and that the settlement is not invalid. At this stage, court approval is required to complete the mediation process.

10.   Court Approval: After the settlement text is signed by the parties, it is submitted for court approval. The court checks whether the settlement complies with the legal requirements. If the settlement text contains provisions that are formed by the will of the parties, have legal validity and are not contrary to public order, it is approved by the court. 

11.   Execution of the Settlement: The approved settlement text becomes an enforceable document after it is finalised. The parties are obliged to comply with the provisions of the settlement text. The enforceability of the settlement is supported by the court decision, and in this way, it is ensured that the parties fulfil the rights and obligations in the settlement text.
 
 
 
B.     TYPES OF MEDIATION

1)     ARBITRARY MEDIATION

Since mediation is one of the most important alternative dispute resolution methods, the principle of voluntariness is very important. The parties are completely free to apply to the mediator and to continue and terminate the process or to abandon this method. Arbitrary mediation is a type of mediation that is suitable for the structure of the mediation institution. Here, the parties prefer to apply to the mediator completely of their own free will, without being forced by either the other party or the legislation. In a mediation method preferred in this way, the probability of success is also quite high. Since it is seen that the areas where mediation is applied worldwide are family law, neighbourhood law, economic commercial disputes, it is important that the relations continue after the resolution of the dispute.

2)     MEDIATION AS A CONDITION OF LITIGATION (MANDATORY MEDIATION)

One of the types of mediation method is mediation as a condition of litigation. Here, application to the mediator becomes a condition of litigation, and it is necessary to apply to the mediator before filing a lawsuit for the resolution of the dispute. With the enactment of the Labour Courts Law No. 7036, for the first time in Turkey, application to a mediator has become mandatory for certain cases. This obligation is referred to as "mediation as a condition of litigation" in the relevant Law. 

      Another mediation as a condition of litigation was introduced with the addition of Article 5/A to the Commercial Code No. 6102 on 06.12.2018 with Article 20 of Law No. 7155. With this regulation, in commercial cases, receivables and compensation claims, the subject matter of which is money, must first be applied to the mediator. Parallel to the regulation on mediation as a condition of litigation in the Labour Courts Law, mediation as a condition of litigation is regulated in the Commercial Code as a mandatory remedy that must be taken before the related lawsuits are filed. In addition to these regulations, Article 73/A of the Law No. 6502 on the Protection of Consumers introduces the obligation to apply to a mediator for disputes before the consumer courts. 

In addition to the amendments made to the Labour Courts Law, Commercial Code and Consumer Protection Law, the Law on Mediation in Civil Disputes No. 6325 has also been amended and Article 18/A titled "mediation as a condition of litigation" has been added. This article contains general regulations regarding mediation as a condition of litigation. Therefore, in cases where mediation as a condition of litigation is in question, the relevant special provision shall be considered first, and in cases where there is no special provision, Articles 18/A and 18/B of this Law shall be taken into consideration.

In summary, mediation is mandatory in areas such as labour-employer disputes, consumer rights, some intellectual property matters, and some commercial matters. In such disputes, the parties are obliged to first apply to the mediator. However, in case of failure to reach an agreement, a lawsuit may be filed.

The plaintiff is required to attach the original or a copy approved by the mediator of the final report stating that the mediator was consulted but no agreement was reached to the lawsuit petition. Otherwise, the court shall give the plaintiff a one-week deadline to submit the final minutes. If the minutes are not submitted by the plaintiff within this one-week period, the lawsuit petition shall be rejected procedurally without notifying the other party. In the event that it is understood that the lawsuit has been filed without applying to the mediator, the lawsuit shall be dismissed procedurally due to the absence of a condition for the lawsuit.

C. MEDIATION METHODS

In Turkish law, mediation methods are used in line with the nature of the dispute, the preferences of the parties and legal regulations. Each method has different advantages and processes. These methods also offer diversity to ensure that the dispute is resolved in a more effective and solution-oriented manner. In this regard, the parties can choose the appropriate mediation method according to the type of dispute and their preferences. 

1.      Arbitrated Mediation: It is a method combining the mediation process with the arbitration process. The parties try to resolve their disputes by applying to both the mediator and the arbitrator. While the mediator directs the communication and negotiations between the parties, the arbitrator is authorised to make legal decisions. Arbitrated mediation is a preferred method, especially in disputes involving complex and technical issues.
2.      Online Mediation: Online mediation method has also become widespread with technological developments. The parties can participate in the mediation process through internet-based platforms. This method offers the parties the opportunity to receive mediation services regardless of time and place. Online mediation is an effective method used especially in resolving disputes between parties at long distances.
D.    ADVANTAGES OF MEDIATION

There are many advantages of mediation under Turkish law. Here are some of the advantages of mediation under Turkish law; 

1.      Being a Less Time-Consuming Method: The mediation process provides a faster and more effective resolution of the dispute. So much so that a dispute in the mediation method can sometimes be resolved in a few hours with the start of the sessions, sometimes within a few days. In this respect, it is obvious that the parties to the dispute can get results in mediation in a shorter time compared to the court process.
2.      Being a Less Costly Method: The mediation process is generally more economical compared to the court process. Fees and other costs are lower in the mediation process. In addition, since the mediation process is shorter, it can reduce the parties' legal costs and other legal costs.
3.      Better Control of the Process by the Parties: In the mediation process, the parties have an active role in the resolution of the dispute. The parties express their demands, propose solutions and try to agree on a compromise outcome. In this way, the parties have more control over the outcome of the solution and can find themselves in a more satisfactory solution.
4.      Being a Confidentiality-Based Method: The mediation process is conducted with the principle of confidentiality. The parties have the right to keep the details of the dispute and negotiations confidential. This facilitates communication between the parties and ensures that the mediator has access to the necessary information to manage the process well and help the parties find their solutions, and that the method can be successful
5.      Flexibility of the Process: The mediation process offers flexibility according to the needs and special circumstances of the parties. The parties can direct the negotiations and settlement process according to their needs. This flexibility enables the parties to achieve a more favourable and fair outcome in the resolution of the dispute.
6.      Preserving the Relationship between the Parties: The mediation process helps to preserve the relationship between the parties. By communicating during the mediation process, the parties strengthen the spirit of understanding and co-operation. In this way, damage to future business or personal relationships is prevented.
7.      Mediators' Knowledge of the Subject of Dispute: Mediation Training: Mediators are required to receive mediation training in order to ensure their competence. Mediators are authorised by passing the training and examinations determined by the Mediation Law. In this way, mediators' conciliation skills, communication and negotiation skills are improved and the quality of the mediation process is increased.

CONCLUSION

Mediation is becoming increasingly important in Turkish law as it reduces the workload of the courts and provides the parties with the opportunity to achieve a more effective and faster dispute resolution. In addition, mediation enables the parties to establish more conciliatory, more constructive and longer-term relationships to resolve the dispute. For this reason, it is very important to understand and know the mediation process well for the resolution of our disputes.

Mediation, which is the most preferred method of alternative dispute resolution, allows disputes to be resolved more cost-effectively and easily. Therefore, it is extremely important for the parties to the dispute to know the process and requirements of both mandatory and voluntary mediation.