Ercüment Erdem Att. Alper Uzun

Mediation in Civil Disputes

March 2013

Introduction

The Law on Mediation in Civil Disputes No. 6325 (“Law”) was accepted on 07.06.2012 and published in the Official Gazette dated 22.06.2012 and numbered 28331.
The provisions of the Law will enter into force 1 year after its publication, thus on 22.06.2013. The Regulation on the Law (“Regulation”) was published in the Official Gazette dated 26.01.2013 and numbered 28540, and will enter into force on the same date as the Law.
The Law regulates mediation in Turkish law for the first time. Article 1 of the Law stipulates that mediation shall be applied only in the resolution of private law conflicts, including those having a foreign element, arising from acts or transactions of interested parties who have the capacity to settle such conflicts.
The preamble to the Law states that it aims to regulate the procedures and principles for resolving conflicts without recourse to courts; the goal is to arrive at a solution simply and easily through mediation, a form of alternative dispute resolution.
Under the Law and the Regulation, mediation is defined as “a method of voluntary dispute resolution system carried out with the inclusion of an impartial and independent third party; who is specially trained to convene the relevant parties by way of systemic techniques and with a view to help such parties mutually understand and reach a resolution through a process of communication”.
According to the Law, a “Mediator” must fulfill the following conditions: (a) be a Turkish citizen; (b) a graduate of the faculty of law and have at least 5 years experience in the profession; (c) be fully capable; (d) have no criminal record for having committed an intentional crime; and (e) have completed mediation training and passed the written and practical exam administered by the Ministry of Justice. The persons fulfilling these conditions may act as mediators by registration to the mediators registry and may commence their services from the date of registration.

Basic Principles of Mediation

The Law and the Regulation set forth the basic principles of mediation.

Being Voluntary and Equal

The Law stipulates that the parties are free to decide whether to utilize mediation, sustain and conclude the process or withdraw from the process. The parties must first decide to resolve the conflict by mediation. No party may be included in the process against his will and all parties have the option to withdraw from mediation at any time.
Moreover, the parties shall have equal rights in their recourse to the mediator and during the mediation procedure. A party may not be excluded from the mediation process and one party’s right to speak may not be restricted in reference to the other party.

Confidentiality

Unless otherwise agreed by the parties, the mediator must keep confidential all information, declarations, proposals, documents or other records submitted or acquired by any means throughout the mediation process.
The obligation of confidentiality includes all persons working with the mediator, as well as any interns. If the mediator acts against the confidentiality principle, legal and penal sanctions may be imposed.

Declarations and Documents That Cannot Be Disclosed

The Law sets forth that in the event there is a lawsuit filed or arbitration proceedings conducted stemming from the dispute, the parties, the mediator or a third party including those involved in the mediation may not cite as evidence any of the declarations, information or documents submitted during the mediation process. These declarations and documents include the following:

  • The invitation to mediate sent out by any party or the statement of willingness to mediate sent by any party;
  • The opinions and proposals submitted by the parties to settle the conflict through mediation;
  • The acceptance of any proposal, fact or assertion submitted by any party during the mediation process or;
  • Documents prepared solely for mediation.

No court, arbitrator or administrative authority may request the disclosure of these documents and declarations. Even if these documents and declarations are cited as evidence, no judgment may be based thereupon. However, said information may be disclosed to the extent required for the implementation and enforcement of the mediation agreement or if there is an imperative provision of law requiring so.

Rights and Duties of Mediators

The Law holds that the mediator must fulfill their duty in person, impartially and meticulously. A mediator must treat the parties equally and may not act or behave in a way to cause any skepticism over his impartiality. The mediator shall inform the parties of important aspects and conditions of the case that will hinder his ability to remain impartial. Despite this information, the mediator can continue to act as mediator if both parties agree as such.
At the outset of the mediation, the mediator is obliged to explain the principles and procedures of the mediation and its legal consequences to the parties, personally and directly. The mediator must also inform the parties regarding qualifications and outcomes of the “Agreement”, which shall be prepared if the parties come to an agreement at the end of the mediation and which has the power of a verdict upon annotation by the court.
The mediator may negotiate and communicate with each party separately or together. The parties may attend these negotiations in person or by their proxies.
Pursuant to the Law, mediators are prohibited from marketing or advertising their services. They are also prohibited from using any title except mediator, attorney or any academic title in their sign boards and printed papers.
In the event the mediation is terminated, the mediator is obliged to preserve the notification served to them, documents entrusted and possessed and the written report prepared regarding the final outcome of the mediation for five years.
The mediator shall be entitled to claim a fee as well as expenses in consideration of his work.

Mediation Activities

The parties can decide to resort to mediation prior to or during the litigation process. The court can also enlighten and encourage the parties to do so. A party may request to apply to the mediator. If a party does not receive an acceptance of the invitation to mediate within thirty days from the day on which the invitation was sent, the invitation shall be deemed to be rejected unless otherwise stated.
Unless otherwise determined, the parties shall appoint the mediator or mediators jointly. Following the appointment, the mediator shall invite the parties to a meeting as soon as possible. Parties can freely determine the mediation procedure provided that it does not conflict with the mandatory legal rules. If no procedure is agreed upon by the parties, the mediator shall use his discretion to determine the procedure by taking into consideration the nature of the conflict, the claims of the parties and the necessary procedures and principles in order for the conflict to be resolved as quickly as possible.
The mediator may not perform actions that exclusively fall within the authority of a judge, such as viewing, consulting an expert and hearing witnesses, whose nature requires the exercise of a jurisprudential power. Likewise, the mediator may not provide legal advice to the parties during the process; develop and impose upon parties a proposal for a solution or a range of solutions, or pressure the parties to reach an agreement on a solution developed during the negotiations. However, should the mediator transmit a proposal to resolve the dispute introduced by one party to the other party and receive the other party’s opinion thereon; this shall not be construed in the above context.
The litigation process shall be adjourned for up to three months if the parties declare their intention to resort to mediation after the court case is filed. The parties may extend this period once for three more months upon joint application.
The Law regulates that the period from the initiation until the termination of mediation shall not be taken into consideration while calculating the lapse of time and foreclosure.

Completion of the Mediation

The mediation shall come to an end if (i) the parties reach an agreement (ii) the mediator determines that it is not worth the effort to continue the mediation after consulting the parties, (iii) one of the parties declares either to the other party or to the mediator that it will withdraw from the mediation, (iv) the parties decide jointly to terminate the mediation and (v) it is determined that the dispute is not convenient for mediation or is related to a crime which does not fall within the scope of mediation pursuant to the Law on Criminal Procedure No. 5271.
At the end of the mediation, a report shall be prepared stating whether the parties agreed, or not or how the mediation process came to an end. The parties shall decide on which issues will be included in the report, except with regards to why the mediation was terminated.
If the mediation ends with an agreement, the scope of the agreement will be determined by the parties. If an agreement is prepared, the parties and the mediator shall sign this document.

Enforceability of the Agreement

If the parties come to an agreement, they may request an annotation on the enforceability of the agreement.
Where the parties resort to mediation before filing a lawsuit, they can request the annotation on enforceability of the agreement from the court as determined by jurisdictional rules. If the parties apply to mediation during a lawsuit, the annotation on enforceability of the letter of agreement can be received from the court that hears the case. The agreement with the annotation has the power of a verdict.
Giving an annotation on enforceability is an ex-parte proceeding and the relevant review may also be done on the file. However, examinations regarding family law disputes, which may be resolved with mediation, shall be conducted by court hearing. The scope of the examination of a family law dispute is limited to two subjects: whether the content of the agreement is suitable for mediation and whether it can be enforced by the state. Where an application is made to the court for an annotation on enforceability and the other party decides to appeal the decision given thereon, fixed fees shall be charged.