Mediation in Türkiye
Mediation first emerged as an alternative dispute resolution method in Anglo-American legal systems and was subsequently adopted by continental European legal systems. It was introduced in Turkey with the enactment of the Mediation in Civil Disputes Law No. 6325, which came into force on June 22, 2013. This reform is significant for developing and promoting out-of-court dispute resolution methods. Key objectives include fostering a culture of reconciliation in society, ensuring social harmony, reducing the workload of courts, and encouraging parties to opt for mediation.
The law defines mediation as:
"A voluntary dispute resolution method conducted with the participation of a neutral and independent third party who has undergone specialized training. This mediator applies systematic techniques to bring the parties together for discussions and negotiations, facilitates communication between them to help them understand each other, and ensures that they generate their own solutions. If the parties fail to produce a resolution, the mediator may propose a solution."
As the law clearly states, mediation is an alternative dispute resolution method that aims to enable the parties to produce their own solutions through mutual discussions with the mediator's assistance. Negotiation and communication are central to the mediation process. While the mediator cannot impose a solution, they utilize negotiation techniques to guide the parties toward resolving the dispute through their own free will. This distinguishes mediation from arbitration. The same principle applies to mandatory mediation, where parties must attempt mediation before initiating legal proceedings in certain disputes defined by law.
Mediation is applied in two forms: Voluntary Mediation and Mandatory Mediation.
Mandatory Mediation: In certain disputes specified by law, parties are required to attempt mediation before filing a lawsuit. However, this process does not impose or mandate a resolution. Mandatory mediation is designed to reduce court workloads and provide quicker solutions for the parties. If the parties fail to agree during the mediation process, they can proceed to court. To encourage the use of mediation beyond its role as a prerequisite, the law imposes specific conditions. For example, if a party refuses to attend mandatory mediation, they may be liable for court costs even if they win the case.
Voluntary Mediation: Voluntary mediation is a process in which parties choose to engage a mediator to resolve their dispute without being legally required to do so. This can occur either before filing a lawsuit or during the litigation process. Parties can opt for voluntary mediation for any private law disputes over which they have the authority to dispose of freely.
Confidentiality and Legal Protections:
Confidentiality is a cornerstone of the mediation process. The law imposes strict confidentiality obligations, with penalties for violations. According to Article 33, violating confidentiality can result in up to six months of imprisonment. This applies to mediators as well, with potential consequences including removal from the registry. The confidentiality rule extends to trainees or staff working alongside mediators, as outlined in the relevant regulations (Article 6).
Furthermore, statements and documents used during mediation are protected from being used as evidence in legal or arbitration proceedings, as stated in Article 5. This ensures that parties can freely express their thoughts and explore solutions without fear of repercussions.
One of the essential elements of mediation is the Mediation Agreement, which, unlike arbitration agreements, is not subject to formal requirements. A mediation agreement must be made in writing. If the terms of the mediation agreement are not fulfilled, the obligations outlined in the agreement can be enforced without the need to file a lawsuit. This feature makes mediation a fast and reliable dispute resolution method.
The subject matter of the agreement must involve disputes that are eligible for mediation. According to Article 1(2) of Law No. 6325, private law disputes arising from matters that the parties can freely dispose of, including those involving foreign elements, are suitable for mediation. However, disputes related to domestic violence, for instance, are explicitly excluded from mediation. The types of disputes subject to mediation are increasing with each passing day, making it an increasingly versatile and widely used method for resolving conflicts.
The Growing Importance of Mediation:
The Minister of Justice stated that through the mediation practice, which was introduced in Turkey for the first time in 2013, agreements were reached in 3.83 million cases. He highlighted that, "If mediation had not been applied, these disputes would have gone to court. Through mediation, disputes equivalent to the workload of an average of 689 courts were resolved."
The Minister also noted that the total number of cases subjected to mediation has nearly reached 6 million. He emphasized that mediation, successfully applied in disputes related to voluntary, rental, labor, commercial, and consumer issues, has facilitated the swift resolution of conflicts.
These statistics demonstrate the increasing prevalence of mediation as an effective alternative dispute resolution method.