Hergüner Bilgen Özeke
Turkey: The New Method Of Alternative Dispute Resolution: Are We Ready To Mediate?
08 March 2012
Article by Hergüner Bilgen Özeke
Mediation, as an alternative dispute resolution method, has been on the agenda of the European Union (the "EU") and Turkey for a long time. In 2002, a Model Law on International Commercial Conciliation was drafted by the United Nations Commission on International Trade Law as a guideline in order to harmonize the laws of mediation that may be enacted by member states. In 1998, the EU focused on resolving disputes occurring within EU borders through mediation and, in 2002, a "Green Paper" was published that established the main principles of mediation. Finally, through Directive 2008/52/EC (the "Directive"), certain aspects of mediation in civil and commercial matters were announced for member states. The Directive draws a framework within which mediation law is to be drafted and adopted by the member states, mainly concentrating on recourse to mediation, enforceability of agreements resulting from mediation, confi dentiality, effects on limitation and prescription periods.
Looking at recent developments in Turkey, the Bill on the Mediation of Civil Disputes (the "Bill") prepared by the Ministry of Justice (the "Ministry") is still on the waiting list of the sub-committee of the Turkish Parliament. The Bill follows the framework set out by the Directive on certain issues mentioned above.
The Bill, as explained on its legal grounds, aims to decrease the volume of disputes brought before the courts, encourages litigants to reach amicable solutions voluntarily and facilitates easier access to justice, which is a right protected under the Constitution of the Republic of Turkey (the "Constitution").
The scope of mediation is defined as civil law matters, including those with foreign elements, in which the parties are free to decide. Under this Bill, the mediator is defined as a real person who conducts mediations and is registered with the Mediators' Registry through the Ministry. At the end of the mediation process, the mediator does not make a decision on behalf of the parties, but facilitates an amicable solution by encouraging communication between the parties. Since mediation strictly depends on the mutual agreement of parties, litigants are free to commence, continue or terminate the mediation process. The parties have equal rights when applying for, and during, the mediation process.
As per Article 13 of the Bill, litigants may agree to apply for a mediator prior to, or during, litigation before the courts. Also, the courts may counsel parties regarding the mediation procedure and encourage them to appoint a mediator. Unless otherwise agreed, if one party does not respond within thirty days to the offer of the other party to appoint a mediator, such offer is deemed to be rejected. Moreover, the parties are free to appoint one or more mediators and to agree on the mediation method to be used. In the event that the parties decide to apply for mediation after the dispute has been brought to the attention of the courts, court hearings will be adjourned for a period of three months. The adjournment period may be extended upon the parties' mutual application to the court.
With respect to confidentiality, which may be the most sensitive issue of the mediation process from the view of the litigants, the Bill obliges mediators to keep confidential all information that comes to light during the mediation process, and the parties are also bound by such a confidentiality obligation unless otherwise agreed. Moreover, the parties, the mediator(s) or any other third party, including those involved in the mediation process, shall not present the following documents and statements as evidence before a court or arbitration tribunal regarding the same dispute: (i) invitation to mediate by one party, or either party's willingness to participate in the mediation process; (ii) comments and offers made by either party to resolve the dispute through mediation; (iii) proposals made by one of the parties, or acceptance of a claim or incident during the mediation process; (iv) documents drafted solely for the mediation process. However, such information may be disclosed where it is required by law, or to the extent that it may be necessary to implement or enforce the agreement reached at the end of the mediation.
Moreover, in order to avoid any loss of right, the Bill specifically regulates the effect of mediation on limitation and prescription periods. Accordingly, the period between the commencement and cessation of the mediation process shall not be counted in the calculation of limitation and prescription periods.
Furthermore, with respect to enforceability of agreements, the Bill enables the parties to apply for an execution court to ensure that the agreement arising from the mediation is enforceable. The examination made by the court will be a limited examination as to whether such dispute is a matter wherein parties are free to decide, and that the final mutual agreement is executable.
Finally, it is accepted that mediation is terminated if: (i) the parties reach a mutual agreement on the dispute; (ii) it is ascertained by the mediator following consultations with the parties that efforts towards mediation have been rendered useless; (iii) either party notifies the other party or the mediator of its withdrawal from the mediation; or (iv) the parties mutually agree to terminate the mediation process.
As mentioned above, the Bill has parallel provisions with the Directive. However, despite the moderate views on mediation in the EU member states, there are many counterviews and criticisms in the legal arena within Turkey regarding the mediation process. Opponents base their arguments on a number of grounds in the Constitution, namely, Article 6 that imposes the "state governed by the rule of law" principle; Article 9, which states that the judicial power shall be exercised by independent courts on behalf of the Turkish nation; Article 138, which affi rms that no organ, authority, offi ce or individual may give orders or instructions to courts or judges relating to the exercise of judicial powers, send circulars, or make recommendations or suggestions; and, fi nally, Article 142, which states that the organization, duties and authorization of the courts, their operation and execution procedures shall be regulated by law. The Bill's opponents claim that, if enacted, it would be struck down by the Court of Constitution based on the Articles of the Constitution mentioned above. Moreover, Turkish bar associations and attorneys have also expressed their opposition to mediation each time it comes up as an item on the agenda of the Turkish Parliament, alleging that the Bill is a political instrument, rather than a legal one that aims to facilitate easy access to fair and swift resolution of disputes.
It seems that we will witness a sizeable change in the judicial environment in the country during the implementation of this dispute resolution instrument in practice, if opposing parties are able to achieve their own mediation and the Bill becomes law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Looking at recent developments in Turkey, the Bill on the Mediation of Civil Disputes (the "Bill") prepared by the Ministry of Justice (the "Ministry") is still on the waiting list of the sub-committee of the Turkish Parliament. The Bill follows the framework set out by the Directive on certain issues mentioned above.
The Bill, as explained on its legal grounds, aims to decrease the volume of disputes brought before the courts, encourages litigants to reach amicable solutions voluntarily and facilitates easier access to justice, which is a right protected under the Constitution of the Republic of Turkey (the "Constitution").
The scope of mediation is defined as civil law matters, including those with foreign elements, in which the parties are free to decide. Under this Bill, the mediator is defined as a real person who conducts mediations and is registered with the Mediators' Registry through the Ministry. At the end of the mediation process, the mediator does not make a decision on behalf of the parties, but facilitates an amicable solution by encouraging communication between the parties. Since mediation strictly depends on the mutual agreement of parties, litigants are free to commence, continue or terminate the mediation process. The parties have equal rights when applying for, and during, the mediation process.
As per Article 13 of the Bill, litigants may agree to apply for a mediator prior to, or during, litigation before the courts. Also, the courts may counsel parties regarding the mediation procedure and encourage them to appoint a mediator. Unless otherwise agreed, if one party does not respond within thirty days to the offer of the other party to appoint a mediator, such offer is deemed to be rejected. Moreover, the parties are free to appoint one or more mediators and to agree on the mediation method to be used. In the event that the parties decide to apply for mediation after the dispute has been brought to the attention of the courts, court hearings will be adjourned for a period of three months. The adjournment period may be extended upon the parties' mutual application to the court.
With respect to confidentiality, which may be the most sensitive issue of the mediation process from the view of the litigants, the Bill obliges mediators to keep confidential all information that comes to light during the mediation process, and the parties are also bound by such a confidentiality obligation unless otherwise agreed. Moreover, the parties, the mediator(s) or any other third party, including those involved in the mediation process, shall not present the following documents and statements as evidence before a court or arbitration tribunal regarding the same dispute: (i) invitation to mediate by one party, or either party's willingness to participate in the mediation process; (ii) comments and offers made by either party to resolve the dispute through mediation; (iii) proposals made by one of the parties, or acceptance of a claim or incident during the mediation process; (iv) documents drafted solely for the mediation process. However, such information may be disclosed where it is required by law, or to the extent that it may be necessary to implement or enforce the agreement reached at the end of the mediation.
Moreover, in order to avoid any loss of right, the Bill specifically regulates the effect of mediation on limitation and prescription periods. Accordingly, the period between the commencement and cessation of the mediation process shall not be counted in the calculation of limitation and prescription periods.
Furthermore, with respect to enforceability of agreements, the Bill enables the parties to apply for an execution court to ensure that the agreement arising from the mediation is enforceable. The examination made by the court will be a limited examination as to whether such dispute is a matter wherein parties are free to decide, and that the final mutual agreement is executable.
Finally, it is accepted that mediation is terminated if: (i) the parties reach a mutual agreement on the dispute; (ii) it is ascertained by the mediator following consultations with the parties that efforts towards mediation have been rendered useless; (iii) either party notifies the other party or the mediator of its withdrawal from the mediation; or (iv) the parties mutually agree to terminate the mediation process.
As mentioned above, the Bill has parallel provisions with the Directive. However, despite the moderate views on mediation in the EU member states, there are many counterviews and criticisms in the legal arena within Turkey regarding the mediation process. Opponents base their arguments on a number of grounds in the Constitution, namely, Article 6 that imposes the "state governed by the rule of law" principle; Article 9, which states that the judicial power shall be exercised by independent courts on behalf of the Turkish nation; Article 138, which affi rms that no organ, authority, offi ce or individual may give orders or instructions to courts or judges relating to the exercise of judicial powers, send circulars, or make recommendations or suggestions; and, fi nally, Article 142, which states that the organization, duties and authorization of the courts, their operation and execution procedures shall be regulated by law. The Bill's opponents claim that, if enacted, it would be struck down by the Court of Constitution based on the Articles of the Constitution mentioned above. Moreover, Turkish bar associations and attorneys have also expressed their opposition to mediation each time it comes up as an item on the agenda of the Turkish Parliament, alleging that the Bill is a political instrument, rather than a legal one that aims to facilitate easy access to fair and swift resolution of disputes.
It seems that we will witness a sizeable change in the judicial environment in the country during the implementation of this dispute resolution instrument in practice, if opposing parties are able to achieve their own mediation and the Bill becomes law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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