Turkey: Mediation In Turkey And Its Comparison With Mediation In The UK And Suggestion For The Future20.11.2014
Turkey: Mediation In Turkey And Its Comparison With Mediation In The UK And Suggestion For The Future
The Law on Mediation in Civil Disputes numbered 6325 ("Law") was published in the Official Gazette with the date of 22.06.2012 and number of 28331 and entered into force on 22.06.2013 as per Article 37 of the Law. Furthermore, the Regulation on Mediation in Civil Disputes was published in the Official Gazette with the date of 22.01.2013 and number of 28540 and entered into force again in 22.06.2013.
The Law applies to the resolution of private law disputes - including those with a foreign element – which arise from the acts and actions of the parties who possess the capacity to freely settle such conflicts.
Mediation is defined under Article 2 of the Law as "a method of voluntary dispute resolution system which is carried out with the participation of an impartial and independent third party who has received specific training to convene the relevant parties with the intention to apply systematic techniques and hold discussions and negotiations and who assists in the establishment of a process of communication between the parties in order to enable them to understand each other and hence reach solutions on their own".
Mediators enrolled in the register are entitled to hold office as mediators and exercise the relevant power. The requirements for registration are as follows:
•Being a Turkish citizen,
•Being a graduate of faculty of law with at least five years of seniority in his/her profession,
•Possessing full legal capacity,
•Not being sentenced for an intentional crime,
•Completion of training on mediation and passing the written and practical exam held by the Ministry.
The fundamental principles of Mediation are summarized herein below:
Impartiality of the Mediator
Mediators should act impartially whilst conducting the mediation process. In addition, mediators can neither lead the parties in any manner nor compel the same to accept any solutions.
Voluntariness and Equality
The parties are free to apply to a mediator as well as to continue the process, to have it finalized or to withdraw therefrom. Furthermore, the parties shall enjoy equal rights.
Unless otherwise stipulated, the mediator shall be obliged to keep confidential all information, documentation and other forms of information submitted to and attained by the mediator within the framework of the mediation. In addition, the parties are also obliged to comply with confidentiality in this respect – unless otherwise agreed.
Ineligibility of Declarations and Documents
In case of the filing of a lawsuit or resort to arbitration regarding the dispute; the parties, the mediator or a third party including those involved in mediation, may not cite the declarations or documents of mediation - such as the invitation to mediation, the willingness of one of the parties to take part in mediation, opinions and proposals submitted, the acceptance of the proposals, facts or allegations as well as all documentation prepared for the purposes of mediation - as evidence. Nonetheless, such information may be disclosed to a certain extent as decreed by a provision of law, or as required for the fulfilment and execution of a mediation agreement.
Non-calculation of the Period of Limitation During the Mediation Process
The period to ensue from the commencement of the mediation period to the completion thereof shall not be taken into account in the calculation of the period of limitation and lapse of time.
In the event that mediation is resorted pursuant to the filing of the lawsuit, the adjudication shall be postponed for at most three months (which can be extended for a further three months). Accordingly, in case of the failure to reach a successful settlement through mediation, the parties shall not incur any loss of right due to the expiry of the limitation period.
Finally, we would like to state that the Code of Civil Procedure has been amended to include mediation and the encouragement of the courts to mediation in addition to settlement is provided therein.
Its Comparison with Mediation in the UK
Initially, please kindly be informed that there are no particular laws governing mediation in the UK and that the English Civil Procedure Rules 1998 refer to and encourage Alternative Dispute Resolution (ADR) which includes mediation. The courts have a duty to encourage parties to use ADR if the court considers it to be appropriate.
Read the full article via Mondaq here