Ercüment Erdem Att. Alper Uzun

Agreement which is signed at the End of Mediation and Its Legal Qualification

December 2017

Introduction

Mediation, an alternative dispute resolution method that was included in Turkish Law in 2012, has shown successful results since that time, and has become prevalent in its use. As of 01.01.2018, application to mediation has become mandatory before litigation in certain disputes arising from the labor law.

Mediation is a process in which it is aimed for the parties to end a dispute by common consent without any decision maker, and in which a third party, who is registered with the mediation registry, undertakes the conduct of communication between the parties. Mediation may be implemented in the resolution of private law disputes that derive from the work and transactions of which the parties can dispose freely, including the disputes that contain an element of foreignness.

As there is no decision maker in the mediation process, no “decision” is given at the end of the process, as well. The parties finalize their dispute by way of reaching an agreement, or not. In the event that the parties come to an agreement at the end of the mediation, the scope of the agreement reached is determined by the parties, and an agreement (which is called by the law “Agreement Document”) is prepared. This document is signed by the parties and by the mediator. [The Law on Mediation in Private Law Disputes (“LMPLD”) Art.18].

At this point, the legal qualification of the agreement document that is drafted at the end of mediation and what this document signifies is examined.

The Content of the Agreement Document and Its Legal Qualification

In the event that the mediation is concluded with the agreement of the parties, the solutions method that the parties have agreed to will be laid out in a document.

This document must be signed by the mediator in order to be qualified as an agreement document within the meaning of Art.18 of the LMPLD, and in order to obtain an enforceability annotation. The principles and procedures that are agreed to between the parties regarding the resolution of the dispute shall constitute the content of this document. The content may be in a form of a settlement agreement. Indeed, it can also include a form of another agreement. However, it is clear that the parties may not include the issues that cannot be resolved by way of mediation, the provisions that are contrary to the mandatory rules, and the provisions that are contrary to morality. The mediator should also avoid signing such document that contains these types of provisions. The performances in the agreement document should be explicit as it leaves no room for doubt, in order to be able to obtain the enforceability annotation, and to be used for execution proceedings, if needed, later on.

Parties used to be able to request an enforceability annotation from the courts in order for the Agreement Document that is formed at the end of the mediation to be qualified as a verdict and to be enforced. According to the amendment made in the LMPLD with Law numbered 7036 on 12.10.2017, the agreement document that is signed by the parties, their associates, and the mediator has also become a document that qualifies as a verdict without the requirement of an enforceability annotation.

Moreover, as a result of another vital regulation made in the LMPLD, in the event an agreement is reached at the end of the mediation, it is mandated in law that the parties cannot file a law suit concerning the subjects that have been agreed to.

With these amendments, the parties concluding the mediation process through consensus are provided with convenience, and a regulation that leaves no room for doubt is made.

Substantially, in voluntary mediations, the parties are entirely free to apply this method, to continue the process, or to abandon the process. Even in mandatory mediations, the mandatory portion is application to a mediator prior to the filing of a lawsuit. This liberty means that it is not mandatory to solve disputes that are subjected to mediation through this method.

However, with this amendment, according to the mandatory provision in the LMPLD, in the event that the parties reach an agreement at the end of the mediation, the matters that are agreed to shall be binding upon the parties, and these matters cannot be subject to a lawsuit, afterwards. Therefore, whether or not an enforceability annotation is issued, matters that are agreed upon by the agreement document shall be binding upon the parties. This situation increases the importance and influence of the mediation process.

As the agreement document is such a legally powerful document, the necessity to pay maximum attention during the preparation of the Agreement Document emerges. In this respect, it is possible to state that the provisions in the Agreement Document should contain explicit and undisputed expressions, that it should be made in a form of a settlement agreement, and that it should be transformed into a judicial order so as to avoid ambiguities during enforcement.

The provision regarding “Non-use of the statement or documents” in Article 5 of the LMPLD comes to mind when the evidential value of the Agreement Document is at issue. As is clear, pursuant to this provision, the parties, including the mediator or the third parties who participate in the mediation, may not submit the indicated statements and documents in the article as evidence, and they cannot testify regarding these statements and documents, if a civil lawsuit is filed in relation to the dispute, or if arbitration is sought. Nevertheless, the said information may be disclosed in the event it is mandated by a provision of law, and to the extent that it is required for the implementation and enforcement of the agreement that is reached at the end of the mediation. Therefore, considering the fact that the Agreement Document is binding pursuant to the mandatory provision of law, and that filing a law suit on the issues to be agreed upon is not possible, a conclusion may be reached that the Agreement Document is to be left out of this scope.

Conclusion

In the mediation process, which comes to the fore regularly and is frequently implemented, in the event that the parties come to an agreement, the issues that are agreed upon are transformed into a document, and this document is signed by the parties and the mediator. Through the amendment made in the LMPLD through law numbered 7036 on 12.10.2017, it is regulated that if the parties reach an agreement at the end of mediation, the parties shall not file a lawsuit on the issues that have been settled. Accordingly, the Agreement Document has become a legally binding document. Moreover, it is also stipulated in the amendment to the LMPLD, that the Agreement Document that is signed by the mediator and the parties and their lawyers is a document that qualifies as a verdict, without seeking an enforcement annotation. Thus, it is provided that the Agreement Document may qualify as a verdict without application to the courts.