10 Apr

Mediation as an alternative dispute resolution has been regulated by European Union Directive 2008/52/EC providing the application of mediation for civil and commercial cases in the member states of the European Union (“EU”). In some of the Member States of the EU the mediation is recent and has been regulated short time ago by their national laws and mediation has been enacted by a separate law.

Mediation as alternative dispute resolution

Mediation is one of the alternative dispute resolutions which may be implemented only for civil cases.  In the EU-Law, the mediation has been defined as “a process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.” Accordingly, mediation serves to resolution of a civil case through a third party or third parties (mediator) without requirement of a court procedure.

Mediation in Turkish Law

A legislation in mediation which has been awaited since long time in Turkey has entered into force in 2013 and regulates the terms and conditions for mediators and mediation. This law has been brought into force within the frame of harmonization of Turkish laws with the EU legislation. Accordingly, only the persons which fulfill the requirements stated by the Mediation Law may practice the profession as mediator.

In Turkish law system, the use of this alternative dispute resolution may be decided by the parties freely and they are subject to equal terms and conditions during the whole mediation process (“equality principle”). Moreover, mediation may be used only for civil cases, whereas the cases which include the claims regarding family violence are not subject to the mediation. In accordance with the above mentioned EU-Directive, this Law is applicable also to the civil cases involving a foreign element.

Other principles concerning the mediation are:

– Ban on advertising of mediators: Pursuant to the Mediation Law, mediators’ advertising authorities have been limited such that they are not entitled to use other titles than mediator, lawyer and academic titles.

– Confidentiality: Mediators and parties are obliged to keep all documents, information which have been submitted or obtained with respect to scope of the mediation confidential.

– Obligation to exercise diligence and principle of objectivity and independency: Pursuant to the Mediation Law, mediators are obliged to fulfill their duties objectively, personally and carefully. In case of a court case in the same subject in which they were appointed as mediaor they are not entitled to be appointed as lawyer, judge or expert.

– Duty to provide clarification of parties about the mediation period, its legal principles and legal conclusions: Mediator is obliged to inform the parties about the mediation procedures, legal principles and conclusions and about the document that will be issued after the mediation procedures at beginning of mediation processes.

– Duty to keep the documents.

Comparison with European Civil Law Systems

In European law systems, there are diverse systems regarding the mediation: System where the mediation is encouraged to the parties, system where the mediation is subject to the free decision of parties and system where the mediation is an obligation for certain cases. As an example, in several countries tax and other financial incentives are offered to the parties in case that they benefit from mediation prior to filing a lawsuit. In Italy, the question if mediation shall be mandatory has often come to the fore and this subject has been discussed frequently.

In Germany, the Mediation Act (“Mediationsgesetz”) has entered into force in 2012 which regulates the voluntary mediation. This law has been brought into force as adoption of the EU-Directive 2008/52/EC into German Law. The obligations of a mediator have been regulated similarly to the Turkish Mediation Law with a difference that advertisement limitation has not been regulated which has been regulated in Turkish Mediation Law. In France, Greece, Italy and most of other EU Member States the implementation of this Directive has been completed.

Should mediation be obligatory?

The entering of the Mediation Law in Turkey may be regarded as a positive progress in Turkish Law. Since litigation may cause high expenses and it takes long time in general, extrajudicial alternative dispute resolutions are regarded as a better resolution method for legal disputes. If mediation should be compulsory, has been discussed in several jurisdictions. In consideration of its advantages such as it is satisfying, quicker and it has less expenses, making the mediation compulsory for certain types of cases may be acceptable and a positive development for the legal system.

 


Herdem Law Firm, Istanbul Turkey

 

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