1. What is mediation?

Over the past 20 years, there has been a rise of alternative dispute resolution movement and restorative justice all over the world. The alternative dispute resolutions include negotiation, arbitration and mediation. For the first time in the history of Turkey, mediation will also be an option to solve legal matters between parties.

Mediation allows disputing parties to reach an agreement, thanks to the participation of a neutral third party. In contrast to litigation and arbitration, the third party has no authoritative power over the parties and he/she cannot impose a decision on the parties. It is said that the decision proposed by the mediation is not binding on the parties unless otherwise agreed by the parties. Therefore, the mediation should only facilitate that parties can reach an amiable agreement that can put an end to their dispute.

2. What are the rules for a mediation process? How does it work?

Parties are free to agree on mediation.Also the courts at a certain stage during litigation shall encourage them to revert to mediation.Upon appointment, the mediator shall as soon as possible invite the parties to a first meeting. Mediators shall keep records of steps such as meetings with the parties, start of the process, and other acts with respect to the process and the finalization of the mediation.
Parties are free to determine the rules of the mediation procedure subject to any mandatory rules of law. If no procedure has been determined, the mediator shall use his discretion taking into consideration the nature of the dispute, demands of the parties and necessary procedures and principles for a quick resolution of the dispute. At the end of the mediation process, a protocol shall be prepared on the outcome of the process. Parties shall agree on any further content of this protocol if any.

2.1. Who does control the process/protocol?

The mediator shall report this protocol to the General Directorate of Legal Affairs of the Ministry of Justice.

2.2. What will be happen if a party doesn’t reply for an invitation?

If a party does not receive an acceptance to the invitation to mediate within thirty days, the invitation shall be deemed to have been rejected unless otherwise concluded.

2.3. Can I decide to go to mediation during an existing court case?

It´s possible to go to mediation during an existing court case. If during litigation parties declare their intention to go to mediation, the litigation process shall be delayed up to three months. This period can be extended for a further three months in case of joint request by the parties.


3. Who is the mediator and which tasks dose he/she have?

Mediation has been defined in the Act as "a voluntary dispute resolution method implementing systematic techniques, enabling a communication process between parties and bringing them together for the purpose of negotiating, reaching an understanding and creating their own resolution, conducted with the assistance of an impartial and independent third person who has relevant expertise training."

Mediators are defined in the Act as real persons conducting mediation who are registered with the mediator registry of the Ministry of Justice. Requirements for registration include Turkish nationality, a degree in law and a minimum of five years legal practice as well as completion of the relevant mediation education program and success in the exams to be held by the Ministry of Justice.

3.1. Is there something prohibited for mediators? Do they have all the power?

Mediators are prohibited from actions that exclusively fall within the judicial authority of a judge, such as site examination, consulting experts or hearing witnesses. Mediators are not allowed to provide legal or professional advice to the parties; develop and impose or force to accept proposals, agreements for the resolution. The mediator is however entitled to inform one of the parties of a proposal made by the other party and receive the relevant party´s opinion thereon. They are also entitled to recommend parties to revert to other means of dispute resolution.

4. What are the positive sides of mediation?

Mediation is an effective way of reducing the work that the Turkish Civil Courts face every year.Extrajudical alternative dispute resolutions are regarded as a better resolution method for legal disputes. 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 legal system.

4.1. Can anybody have a look at the cases of mediation? Is it open for public?

While the lawsuit file is soon available to public, mediation is strictly confidential unless the parties agree otherwise.

4.2. Is it safer to solve the litigation, because of the secret information or evidance?

Mediators and parties are prohibited from disclosing any documents and information received within the framework of the process, including conduct of the parties, unless otherwise agreed.The parties and the mediator are prohibited from relying as evidence on certain declarations, information or documents submitted during the mediation process.

5. Is Mediation useful for all types of cases?

In turkish law system, mediation may be used only for civil cases.

5.1. Can all themes be solved in mediation?

The act has been limited to civil disputes; whereas the case which include the claims regarding family violance 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.


6. What are the costs for mediation? Is it cheaper than costs for courts?

Instead of paying the courts filling fee in most of the cases based on quantification of the Case. In private mediation, parties just need to bear the cost. It is believed that mediation will be a way of cutting the cost for parties.Unless determined otherwise by agreement between the parties and the mediatior, fees arge determined on the basis of minimum fee Tarif.

6.1. Who set the tarif?

The minimum fee tarif is annually published by the Ministry of Justice.

6.2. Who has to pay for it?

Unless otherwise agreed the parties shre the fees and costs equally. Mediatiors are prohibited to act on a success fee basis.


7. What kind of enforceability does mediation have? What do we need for a legally accepted agreement?

 

If the parties come to an agreement, they may request an annotation from the relevant court on the enforceability of this agreement. Such annotation gives the agreement the power of a court judgment. The examination for enforceability will be limited to (1) enforceability and (2) suitability for mediation. The application to the court for such annotation (and appeal against such decision on annotation) as well as stamp dues applicable to settlement agreements has been subjected to fix fees the amounts of which are rather ignorable as against variable fees based on the amount of the dispute (applicable in case of court actions and stamp dues on agreements).