What is mediation?
Mediation is a dispute resolution method that has been used in Europe and the United States for nearly 40 years. It is a process in which people who have been the subject of a lawsuit or may have a dispute, resolve the issue by mutual negotiation in the presence of a mediator.
How did the mediation system take place in the Turkish legal system?
In parallel with its development in the world, mediation in our country was a subject that was discussed and discussed, scientific articles and reports were written, especially by academic circles, by the end of the 1990s. With the scientific discussion and studies on the subject reaching the desired density, a scientific commission was established to conduct legal studies on this issue. The “Draft Law on Mediation in Legal Disputes”, which was submitted to the Grand National Assembly of Turkey on 03.06.2008, at the end of the long-term work of the Commission by examining world examples, was accepted and enacted in its session dated 7 June 2012.
What is the role of mediators?
Mediators apply mediation methods that facilitate communication of the parties and keep them at the table. It helps the parties to find their own solutions. While doing this, the mediator does not make a decision that resolves the issue, and does not offer a solution option to the parties. The mediator must be an impartial and independent person. If the mediator has a serious relationship with one of the parties, he should not mediate.
Who can be a mediator, what are the conditions?
Only law school graduates with at least five years of professional experience in Turkey can mediate. In order to become a mediator registered with the Ministry of Justice, at least forty-eight hours of theoretical and practical training must be received from the educational institutions licensed by the Ministry. After the training, those who pass the written and practical exam held by the Ministry and are registered in the registry gain the title of mediator. In Turkey, mediators are subordinate to the Ministry of Justice in terms of registry and supervision. Mediators pay financial dues every year. Those who do the profession of mediation have to take eight hours of renewal training every year.
Which cases are covered by mediation?
According to the Law on Mediation in Civil Disputes, mediation can only be applied in cases where the parties can settle, give up their rights and accept the claims, and a court decision is not required. For example, the parties cannot take such matters to a mediator, as a court decision is absolutely necessary for the divorce of the parties and the custody of the child. Again, the dispute stems from domestic violence and if it is not one of the crimes that are within the scope of reconciliation in the Code of Criminal Procedure, that event will not be suitable for mediation. In other words, it is not possible to go to a mediator for the compensation requested as a result of, for example, the violence of the spouses to each other, wounding with a gun, and crimes that cause death. However, all loan agreements, purchase and sale agreements, consumer disputes, contracts of work, lease disputes, employee receivables, maritime trade and insurance disputes, trademark-patent disputes, property sharing disputes after divorce, injury by negligence, unarmed willful injury, insult, threat, housing Mediation may be applied for compensation to be requested due to the commission of crimes related to the complaint, such as the violation of immunity and the disclosure of trade secrets. As part of the Ministry of Justice’s efforts to make the mediation system mandatory as a pre-trial solution, mediation will first become mandatory in employee-employer disputes. According to the changes expected to come to the agenda of the Assembly in 2016, mediation in labor cases will become mandatory. Cases filed without applying to a mediator will be rejected without being examined.
When do people apply to mediators?
People who have a legal dispute between them can apply to a mediator whenever they need the help of a third party to resolve it. Mediation in Turkey can be applied before or during the lawsuit. In pre-litigation mediation, if the parties reach an agreement, litigation will no longer be necessary. After the parties have filed a lawsuit, the judges inform the parties about the mediation. If they want to go to mediation, the judge can postpone the hearing for up to three months at most twice. If the parties agree, the court stops hearing the case and the text agreed by the parties is valid. If they cannot agree, the case continues from where it left off and the court decides on the incident.
What are the advantages of mediation?
Mediation is a method that has many advantages, especially when compared to litigation. Because of these advantages, mediation is becoming more and more popular in the world and in our country.
Mediation preserves relationships between people. Since it is a friendly solution on the basis of mediation, it prevents the existing relations from getting worse and ensures the recovery of the broken relations. Since the parties maintain communication in mediation, they have a higher chance of finding a common solution that suits their wishes.
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Mediation provides quick resolution. While the events that are the subject of the case are resolved by the court in an average of eight months at the earliest, and four years on average, the result can be reached within three hours to one week in mediation. For this reason, they may choose mediation to resolve the dispute in a short time.
Mediation is economical. Mediation provides a solution with reasonable fees in the face of expenses, attorney fees and late receipt of the right during the lawsuit.
Mediation is confidential. Opinions, documents, proposals and confessions put forward in mediation are confidential. Therefore, the parties can discuss any issue without hesitation. For this reason, mediation may be preferred in matters that are feared to be reflected to the public.
In mediation, the control of the process is in the hands of the parties. In mediation, an agreement is made only on matters agreed by the parties. The parties can withdraw from mediation at any time. No one can be forced to sign an agreement they don’t want.
What is the cost of mediation?
The parties will pay the mediator’s fees and expenses equally. If the dispute can be measured in money, for example, in a case of 25,000 TL, the parties pay a total fee of 6% to the mediator. According to the fee schedule, this rate decreases gradually as the amount subject to dispute increases. In cases that cannot be measured in money, the mediator’s wage is paid as an hourly wage. This fee can be between 95 and 240 TL per hour depending on the event and the number of parties. No fee agreement can be concluded with the mediator under the tariff.
What kind of process is followed if one of the parties does not comply with the agreement after a successful mediation?
With the signing of the mediation agreement, it binds both parties. It is possible to return from this agreement with the consent of the other party, that is, only to a new agreement. After signing the mediation agreement, the requesting party can apply to the court and take an “enforceability annotation” on the agreement document. With the court’s annotation of enforceability to the agreement document, the mediation agreement document serves to initiate the enforcement process, just like in the execution of court decisions. It is not possible to object to this enforcement proceeding, except for the limited cases. As it can be seen, in case the agreement signed at the end of a successful mediation is not complied with, it is possible for the creditor to initiate enforcement proceedings with the agreement document and to receive his/her receivables through foreclosure when necessary.
