MEDIATION UNDER TURKISH LAW
WHAT IS MEDIATION?
Mediation is an extrajudicial and alternative dispute resolution procedure in which the parties -including Turkish citizens and foreigners – discuss their disputes and the disputes are resolved with the assistance of an objective and experienced third party (mediator). In accordance with the Turkish Law on Mediation in Civil Disputes (HUAK), mediation shall be applied in private civil disputes arising from all acts and proceedings which have no concern with the public order and the parties can reach a legal conclusion on the dispute by acting with their own free will and without the need for a court decision, that dispute shall be proper for mediation.
Benefits of the Mediation Under Turkish Law
Like in many country, there are various advantages and benefits of mediation also in Turkey. When it is compared to regular judicial procedures, mediation is always the fastest and least costly choice than the judicial remedy if the parties want the dispute to be resolved more quickly since the judicial remedy is very costly when the dispute value is considered, and the enforcement of decision is difficult and impossible in judicial resolution of the dispute.
Attendant Party Rights and Principles in the Process of Mediation
There are various main principles in the process of mediation. The parties participate in the process of mediation with equal rights and their own free will. For this reason, the parties are free to apply to a mediator, continue or abandon the process, and their rights are equal during the whole process to prevent being excluded from the process or the restriction of the parties’ right to speak. Unless otherwise agreed by the parties, the mediator is liable to keep all information, documents and other records, which are submitted to her/him within the scope of the mediation activity, confidential. In addition, the parties are liable to respect confidentiality. It is not possible to use any declaration or document on the process of mediation after the relevant process has ended.
The Types of Mediation in the Turkish Law
- Compulsory Mediation;
Before taking a legal action, it is compulsory to apply to a mediator for disputes which may be dismissed due to the cause of action brought before applying to the mediator. Claims on commercial disputes and on the disputes arising from the labor law (labor receivables such as wage, salary, overtime wage, severance and notice payment) as well as consumer disputes are within the scope of the compulsory mediation.
- Voluntary Mediation;
Except for the compulsory mediation procedure, all private civil disputes, acts and actions, in which the parties including foreigners can dispose freely, are resolved with the voluntary mediation procedure. Voluntary mediation can be applied for the actions on legal disputes such as compensation arising from death or disability due to an occupational accident, overtime work and wage receivables, compensation for loss of support, and severance and notice payment within the scope of the labor law, the disputes within the scope of the commercial law, the disputes within the scope of the insurance law, land annulment and registration actions and disputes such as prevention of intervention to a real property, occupation compensation (adequate pay), pre-acquisition (preemption), and elimination of joint ownership within the scope of the real property law, legal disputes such as fictitious transaction of the testator, action for reduction due to a reserved portion, and division of a decedent’s property within the scope of the inheritance law, disputes such as division of property in divorce, pecuniary and non-pecuniary damages, and contribution or participation receivables within the scope of the family law, and disputes within the scope of the consumer rights.
The parties can apply for voluntary mediation at every stage before or after the action has been taken. For this reason, as long as the parties agree to apply to a mediator, they can apply to a mediation institution at every stage of the dispute. In addition, the judge may inform the parties and direct them to apply to a mediator after the action has been taken.
Improper Actions for Mediation in Turkey;
Disputes which cannot be disposed by the parties and usually arise from the public law, and some legal disputes regarding certain fields of law such as the family law cannot be resolved through mediation. For instance, criminal actions (including the crimes within the scope of mediation), actions on correction or change of registers, actions on custody of children, disputes with a claim of violence in the family, administrative jurisdiction actions, and actions arising from the taxation law cannot be resolved through mediation.
Agreement of the Parties as a result of Mediation
The agreement or disagreement of the parties or the outcomes of the mediation activity shall be documented through a minute in the end of the mediation activity. Such document to be prepared by the mediator shall be signed by the mediator, the parties and their legal representatives or attorneys. If the document is not signed by the parties or their attorneys, it shall be signed by the mediator, by indicating the reason.
If the parties have come to an agreement on the resolution of their dispute, a letter of agreement shall be prepared by the mediator. The letter of agreement can be prepared in written, or can be issued or approved by a notary public. In this letter defined as ‘’the letter of agreement’’ in the Mediation Law, all important issues such as the subject of the dispute, the terms of the agreement, the requirements to be fulfilled by both parties, the place and date of the agreement shall be written.
Annotation on the Enforceability of the Mediation Agreement
The parties may demand an annotation on enforceability of the mediation agreement from the relevant court. If the parties have applied to a mediator before the action has been taken, the annotation on enforceability shall be demanded from the Turkish Civil Court of Peace ( Magistrate Court ) where the mediator carries out her/his duty. However, if the parties have applied to a mediator during the course of the action, the annotation on enforceability of the mediation agreement shall be demanded from the court where the action has been conducted.
The judicial procedure and examination to be fulfilled by the court for the annotation on enforceability are a non-contentious jurisdiction. Except for the disputes on the family law within the scope of mediation, the examination on this issue shall be made in accordance with the relevant file. May, 2020
Mediator & Attorney
Fatma Dilsad YELKEN
www.kayapartner.com info@kayapartner.com