Alternative Dispute Resolution Evolution in Turkey For International Markets - I

 In this expeditious century with the speed of the internet, globalism, many global problems, and the latest under the pandemic conditions, in all countries and systems, we need to act as mediators. The sources are becoming more limited and time is more valuable nowadays. Like many courts in different jurisdictions around the world, the civil courts in Turkey have essential problems regarding managing the caseload. Currently, there are too many lawsuits in these civil courts in Turkey. Also, the forecasting about the number of new cases that are waiting for the protective restriction regulations of the pandemic to end is huge. Besides, these lawsuits have high expenses and it requires a long time to have a final judgment.  Further, the quality of the legal services provided by Turkish courts is not sufficient all the time due to the excessive workload. Not only for Turkish citizens and investors but also the foreigners, foreign investors, there is a need to have effective and cost-efficient dispute resolution mechanisms for more accessible justice and global economic competition.

 

Turkish legislators, following the significant rise in the use of alternative dispute resolution (“ADR”) methods around the world, decided to introduce voluntary mediation into Turkish Law as another ADR method after arbitration. Even at the first step of the mediation history of Turkey, the conditions of enforcement of the settlement were guaranteed by Law. The enforcement was the most important aspect of the mediation practice. The adoption of the Mediation Law in Turkey (in 2012) should be regarded as positive progress in Turkish Law and also for Turkey’s governmental welcoming policy to foreign investors. The advantages such as being confidential, time-efficient, and cost-efficient makes the mediation highly preferable for certain types of cases. One of the important aspects of the Law was the possibility of having a Mediation process before or during the court procedure. “The lack of awareness on ADR systems, the above-mentioned provisions do not create a suitable environment where ADR can play a central role in all fields of civil dispute resolution. The Civil Procedural Law does not provide the necessary authority to use ADR. Thus, it is widely accepted that the Civil Procedural Law should be amended to provide broad authority for using ADR processes in all civil cases.”[1] This requirement brought another milestone to the development process of mediation in Turkey during judicial reform movements.

Since the Ministry of Justice has adopted a strategy for judicial reform in line with the EU acquis at that time, the old Civil Procedure Law also has been replaced with a new form including certain amendments to promote and facilitate the practice of mediation.[2] Article 137 in this new form of Civil Procedure Law provided that the judges are required to ask the parties about having a voluntary mediation process before court procedure at a preliminary hearing. This step was before the announcement of the Law of Mediation in Civil Disputes. All these reforms and preparations brought a new era for the resolution of civil disputes in Turkey. Ministry of Justice formed a Mediation Board as it was announced in Act 6325 with the representatives of various institutions and agencies to keep the objectivity for the implementation and the development of mediation.[3]]  Model Ethics and Rules for Mediators and Mediation System announced by this board as another important step.

Before the Law came into force, the Ministry of Justice established a separate department that is responsible to the General Directorate of Legal Affairs. In the beginning, the main role of the Mediation Department was to monitor the implementation of the Law and suggest the necessary amendments. Other assignments of the department were promoting the positive aspects of mediation, organizing international meetings, conducting exams, giving permissions for mediation training courses, mediator registration process, and records, auditing the system and mediators, technical researches, and keeping the statistics under the control of the department. This department has scheduled many international meetings and study visits to develop Mediation Practice in Turkey for a good and reputable Mediation service in the country under the international ADR service criteria.

As a fact, Turkey has many advantages for foreign investors including its logistic, geographic, resourceful, technologic, and systematic benefits and eligibility. The experience of alternative dispute resolution in international cross border disputes are slowly progressing in the country for now. The main reason for the slow movement is the quality of international institutional standards of mediation services and the international accreditation of mediators. To establish and expand the mediation policy of the government has been planned country-wide at the beginning. In six years of practice, huge steps were taken in the local system.

Until 7 August 2019, Turkey was not a signatory to any international treaties or bilateral agreements on mediation. Therefore local law standards are in charge at the beginning and international dispute resolution was very limited only with individual case proceedings. Turkey now is a signatory for Singapore Mediation Convention and about to ratify the Convention in our Parliament.  As a member of the Singapore Mediation Convention, Turkey will provide double choices to foreign investors in their cross-border commercial dispute resolutions in Turkey. Either under Act 6325 or Singapore Mediation Convention they will have the benefits of enforceability i.e very important for today’s global trade life. On the other hand, Turkish investors also will have the advantages of the Singapore Mediation Convention in the member countries to solve their commercial disputes.   Ministry Of Justice also moved to revise the Mediation Act 6325 to be much more inclusive, innovative, practical, and compatible with Singapore Mediation Convention Rules. Another important point for a revised Mediation Act is to regulate some unmissed points in Act 6325 by setting the main rules for Mediation Centers’ accreditations. As a part of the judicial reform, that move will bring new targets and standards to Turkish legislation to compete globally in international cross border dispute resolution. Not only the regional importance and the power of the country but also the new legislations and having membership of International Conventions for neutral, fast, reputable services to investors will be the attraction points.

When mandatory mediation was introduced for labor law disputes on 1 January 2019, there have been many mediation cases regarding construction disputes or employer-employee disputes where the majority regarding Turkish employees working at consortiums abroad and foreign employees working at consortiums in Turkey. It is declared by Mediation Department that more than fifty thousand cases have been resolved by this procedure for the past two years. The major concern in this regard is the possibility of not been conducted under the mediation ethics. Turkish Court of Appeal ruled a decision[4] that affirms the mediation ethics does not comply regarding some of these mediation cases taken to the courts. Thus, it is completely understood that it is essential to comply with ethics rules. Mediation Department now is still working on some solutions with increasing the number of training, providing control on ethical issues and planning mediation practice in international standards.

Besides, now it is clearly understood that  Mediation Advocacy is very important and so there should be well-designed training for lawyers. Enhancing the mediation advocacy skills is highly important. Especially in international dispute resolution cases, there will be a significant demand for mediation advocacy.

Whereas Turkey lost some time while taking the road, the latter considerably proceeded with fast steps to provide acknowledgment for mediation as a dispute resolution mechanism. Now the government is taking more conscious steps at all stages after the mediation practice turned to be a part of the judicial system with mandatory mediation regulations. Everything regarding mediation that is mostly performed in national law issues is still evaluated according to the legislation and these inconveniences enhancing the quality of mediation practice itself sometimes.

The most important point is increasing the number of mediators accredited in international platforms and the use of mediation mechanisms in a broader scope. Being now a part of an international convention in this arena for the first time will generate new opportunities for the mediation practice in Turkey. Under the 4th Judicial Reform that the government working on this for a year seems that there are new steps to increase the number of centers which searches for international accreditation training and accredit their member mediators with international mediation certificate, support cooperation with international mediation centers and promotion of seminars and workshops. Focusing on international accreditation criteria and ethic rules, advancement in Mediation advocacy will be the key points of Turkey’s real leadership in the region as an International Dispute Resolution hub.

 

[1]        Bünyamin Alper Ekşi, “Better Access to Justice in Turkey”, Turkish Ministry of Justice DG for EU Affairs, 19 April 2007

[2]        Code of Civil Procedure, Act No. 6100, Official Gazette, No. 27836, 04 February 2011

[3]        Model Ethics and Rules for Mediators and Mediation System, Ministry of Justice Mediation Board, March 2013

[4]        9th Court of Appeal, Decision No.2019/13040