Mandatory Mediation and Voluntary Mediation in Turkey
MEDIATION: A COST-EFFECTIVE AND FELEXIBLE ALTERNATIVE FOR LITIGATION
Mediation has emerged as a popular alternative to traditional litigation for resolving disputes, especially in civil disputes arising from business and transactions. One of the main benefits of mediation is that it’s cheaper and faster than going to court, so it’s more accessible to people who want to find a solution.
Another advantage of mediation is that it’s very flexible. Unlike traditional court procedures, mediation isn’t very formal, so it can be customized to fit the specific needs of the parties involved. For example, if the parties are in different locations, they can even have mediation sessions online! The mediator’s role is to help the parties communicate effectively so that they can work together to find a solution.
Confidentiality is also a big plus when it comes to mediation. Everything that’s said during mediation is private, so the parties can feel more comfortable sharing sensitive information that they might not want to reveal in a courtroom. This is especially important in business disputes, where confidentiality can be crucial for maintaining a competitive edge.
Finally, mediation encourages a win-win approach, where both parties try to find a solution that works for everyone. This is different from traditional litigation, where one party “wins” and the other “loses”. By working together, the parties can often find a solution that is better than what either party would get in court.
Overall, mediation is a great option for resolving disputes related to businesses and transactions. It’s cheaper and more flexible than traditional litigation, it allows for confidential discussions, and it encourages a cooperative approach to finding a solution. However, it may not be suitable for legal disputes related to public order or where parties cannot manage the issue at hand themselves.
PRINCIPLES THAT GOVERN THE MEDIATION PROCESS AND ENSURE RELIABILITY
Mediation is a popular alternative dispute resolution method that involves a third-party mediator who facilitates negotiations between the parties in dispute. This process is voluntary and confidential, providing the parties with control over the outcome of the resolution. The mediator’s role is to help the parties identify issues, explore options, and reach a mutually acceptable solution.
Impartiality is one of the fundamental principles of mediation. The mediator must be neutral and unbiased, not favoring one party over the other, to build trust and encourage parties to be open and honest. Confidentiality is another essential principle, meaning that all information shared during the mediation process is kept confidential, promoting trust and honesty.
Voluntary participation is also a crucial principle of mediation. The parties participate in the mediation process voluntarily and can withdraw at any time if they feel that the process is not working for them. This principle ensures that the parties take ownership of the dispute resolution process and work collaboratively towards a mutually acceptable resolution.
Party sovereignty is another vital principle of mediation, giving the parties control over the outcome of the dispute resolution process. They can negotiate and agree on a solution that meets their needs and interests, rather than waiting for a decision imposed on them by a judge or arbitrator, making the result sustainable and long-lasting.
The principle of equality ensures that the parties have equal opportunities to participate in the mediation process, and the mediator treats them with respect and dignity. The mediator should not favor one party over the other and should consider the interests and needs of each party when exploring possible solutions.
Lastly, confidentiality is a vital principle of mediation, providing an informal process that encourages parties to communicate openly and honestly. It allows parties to explore possible solutions in a conflict-free and non-hostile environment, reducing the stress and anxiety related to official legal proceedings. Information and documents presented during the mediation process cannot be used as evidence, encouraging parties to work cooperatively towards a mutually acceptable solution.
To summarize, mediation is a form of conflict resolution where an impartial mediator helps parties in dispute negotiate and come to an agreement. The success of mediation relies heavily on the guiding principles, which include impartiality, confidentiality, discretion, party autonomy, equality, and informality. Mediation is a flexible and confidential process that enables the parties involved to take ownership of the resolution process and work together towards a mutually acceptable outcome. These guiding principles are crucial in ensuring that the mediation process is just, respectful, and efficient, and foster an environment where parties can communicate honestly and openly in a non-confrontational and non-hostile manner.
IS MEDIATION REQUIRED? UNDERSTANDING CONDITIONAL AND OPTIONAL MEDIATION
Eligibility for Mediation
Mediation is a process where a neutral third party, known as a mediator, assists parties in resolving their disputes through communication and negotiation. It is commonly used in private law disputes, and it can save time and money compared to going to court. However, not all disputes are appropriate for mediation.
In Turkey, registered mediators must undergo basic training from authorized institutions. Mediation is suitable for private law disputes that do not involve public order and can be resolved amicably. Family law disputes, such as financial compensation claims, property management during marriage, and property division in case of divorce, can also be resolved through mediation. However, certain family law matters, like annulment of marriage, rejection of lineage, and paternity, cannot be mediated.
Disputes involving domestic violence are not suitable for mediation, according to Turkish law and the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence. Furthermore, mandatory alternative dispute resolution procedures, including mediation and conciliation, are not permitted for any acts of violence covered by the Convention.
In Turkey, mediation can be used to resolve property and consumer protection disputes, compensation cases arising from disputes related to torts and unjust enrichment, and private law cases concerning the return of acquisition. It is also possible to mediate disputes related to dissolution of jointly owned partnerships, lease disputes, and actions for negative determination and compensation, as well as lawsuits for receivables with precautionary attachment.
When it comes to intellectual property disputes, not all disputes are eligible for mediation. Matters that are the subject of nullity action are generally not suitable for mediation and enforcement. However, in some intellectual property disputes, applying to a mediator is a litigation condition, provided that it is related to the commercial enterprise of one of the parties. The eligibility for mediation is examined based on various factors, such as whether the dispute is generally suitable for mediation, whether the parties are merchants, and whether the dispute arises from intellectual property legislation.
In summary, the key factor in determining whether a dispute is appropriate for mediation is whether the parties are free to resolve the matter through negotiation.
Optional mediation allows parties to voluntarily choose to engage in mediation before or during a lawsuit. The court may also encourage parties to consider mediation. If one party proposes mediation and the other party does not respond within 30 days, the offer is considered rejected. During mediation, the mediator assists the parties in finding a mutually acceptable solution, but cannot make decisions that only a judge has the authority to make. The parties can participate in person or through legal representatives, and experts may also be involved. The mediator may suggest solutions if the parties are unable to reach an agreement. Compensation actions can only be taken against the state for actions taken by the commission during mediation. The statute of limitations is not affected by the duration of the mediation process. The mediation process ends when the parties reach an agreement, when the mediator decides that further efforts are unnecessary, when one party withdraws, or when both parties agree to end the mediation. The outcome of the mediation is documented in a report, and if an agreement is reached, it can have the effect of an executive title. The mediator is required to keep records of the mediation for five years.
PROCEDURAL REQUIREMENT MEDIATION
The legal system in Turkey recognizes the benefits of mediation as an effective tool for resolving disputes. In particular, litigation mediation is regulated by law in different contexts, including consumer disputes, commercial disputes, and labor law disputes.
In consumer disputes, mediation is a prerequisite for litigation, except for certain exceptions. Consumers are required to apply to mediation before filing a lawsuit in disputes in consumer courts. If the parties can reach an agreement through mediation, it can save significant time, money, and effort compared to the formal court process. However, if mediation fails, the parties can still pursue their claims in court.
In commercial disputes, it is a condition of action to apply to a mediator before filing a lawsuit about claims for receivables and compensation from commercial lawsuits, the subject of which is the payment of a certain amount of money. The mediator concludes the application within six weeks from the date of assignment. This period may be extended by the mediator for a maximum of two weeks in compulsory cases. This ensures that the parties have an opportunity to reach an agreement through mediation before resorting to court.
In labor disputes, mandatory mediation was introduced to resolve disputes more effectively and efficiently, avoiding the burden of protracted court processes. Labor disputes between employers and employees regarding compensations such as annual leave wages, overtime wages, salary, notice pay, severance pay, and reemployment should be resolved through compulsory mediation. It is obligatory for the parties to apply to a mediator to resolve the legal issues between them before filing an employment lawsuit, and failing to do so will result in the labor court rejecting the lawsuit due to “absence of litigation requirements”.
In conclusion, litigation mediation is a useful tool in resolving disputes before resorting to court. It can save time, money, and effort, and give parties more control over the outcome of the dispute. It is now mandatory in many cases in Turkey, including consumer, commercial, and labor law disputes, to encourage its use and avoid the burden of lengthy court processes.
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