The mediation system is an "alternative dispute resolution" method that is widely used in developed countries and can be used by the parties to resolve their disputes with the help of an impartial third party, without going to the court. Although it has existed in the legal systems of other countries for a long time, it wasn't until recent years that the mediation system that came with Roman law has been turned from theory into practice in Turkish law.
While judges could mediate between parties in lawsuits depending on the process, now, in order to reduce the burden of judges, an obligation has been introduced to this system and the mediators assigned from the committees established has had the authority to negotiate with the parties in pre-lawsuit processes. Actually mediation in Turkey had begun to be applied as a way of "alternative dispute resolution" with the Law No. 6325 on Mediation in Legal Disputes which came into force on 22.06.2012. Although it is a system that should be resorted to before the lawsuit, it has recently been adapted practically to the implementation process. We see that the adaptation problem still persists, although the system is made compulsory for some cases when it is implemented.
With Law No.6325, a new self-employment has been created and the people who will perform the job of mediation have been authorized to use the title "mediator". Especially recently we see that lawyers can also mediate. Lawyers who meet certain criteria in the law obtain the title of “mediator" by attending bar or university trainings offered and passing certain exams. Applications to the commissions go directly to the mediators registered in three separate commission lists and the parties are called and negotiated by the mediator receiving the file.
According to the results of the negotiation, the case is opened or not. After the procedures such as agreement of the parties and the recording of this agreement, the case is opened when the result of mediation is finalized. Mediation was previously applied only to labor law and certain legal disputes, but as of January 1, 2019, it began to be applied to commercial lawsuits as well. It is also expected to be applied for consumer cases in the future. But it still seems that there are problems in practice. Although it takes a long time to adapt to a new system, we aim to be able to identify problems and create a solution process with this article.
In 2018, the Department of Mediation published a statistic for mediation practices, which are mandatory primarily in labor law and other types of cases. Accordingly, the number of applications made to mediators in 2018 was 127 thousand 845. 65 percent agreement was reached after the negotiations, while 35 percent was left unresolved. In 15 thousand 655 non-compulsory mediation applications, 97 percent agreement was reached last year.
MEDIATORS DON’T FIND THE TRAINING ADEQUATE
The identified problems of mediation practice can be listed as follows:
- Lawyers do not have enough information about the operation and implementation of the system and there is no sufficient training to inform the lawyers about mediation.
-The mediator lawyers are not able to fully adapt to the system and consult the other party's information rather than their own in negotiations.
-The documents submitted in the application fail to go from the system to the mediator, frequent missing paperwork problem in negotiations. When power of attorney is issued from the system, the mediators have to send it again because they cannot see the power of attorney from the system.
-Negotiations, which could be ended at once, being prolonged up to two or third meetings due to mistakes that are overlooked by inexperienced mediators.
-Failure of the parties to agree due to weakness of mediator during negotiation.
-The difficulties experienced due to the fact that the mediation system has been implemented more in labor law and other receivables cases in the last few years and it has been recently introduced in commercial cases… Even the lawyers do not have full knowledge about which commercial dispute issues will go to the mediator and there are problems due to the lack of adequate training, as we said in the beginning…
-Lack of sufficient information on the internet on how to apply for mediation… Since the citizen does not know which mediator to go to according to the lawsuit he/she wants to file and applies to the wrong place, even if his/her application is accepted, the other party can plea to the jurisdiction. This leads to a prolongation of the negotiation process.
-Mediators may tend to be present in negotiations to implement the procedures prescribed by law and to meet the cause of action, rather than finding a solution.
- The psychological training of the mediators is lacking and should be provided predominantly.
The problems of mediation identified through the eyes of a lawyer can be overcome by future solution dynamics. These problems will be experienced until a newly established system which is being tried to be implemented is fully settled, however, in order to prevent the continuation of these problems, these problems about which we have gained experience must be solved. If this system was created, I believe that solutions will come too and we will adapt to the mediation system which will bring light to the search for justice in Turkish law.
0 212 570 80 30