DEVELOPMENT OF MEDIATION IN TURKEY
Chapter 1 Introduction
Either we accept or not we all have to be mediators in this expeditious century. The sources are becoming more limited and the time is more valuable nowadays. As 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. Besides, these lawsuits have high expenses and it requires a long time to have a final judgement. Further, the quality of the legal services provided by Turkish courts is also questionable due to the excessive workload. Not only for Turkish citizens and investors but also for the foreigners, foreign investors, there was a need to have new, 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 mediation history of Turkey, the enforcement of the settlement was guaranteed by Law. The enforcement was the most important aspect of the mediation practice.
Chapter 2 General Information on the Development of Mediation in Turkey
Many of the countries had the same efforts to improve and use ADR methods to serve less complicated resolutions for civil disputes without competing with their judicial systems. The mediation, as one of the distinguished option where the parties find
their solutions for disputes with their intention and negotiations with the guidance and support of a neutral third person, became a popular formula for the legislators. Under these circumstances, The Model Law on International Commercial Conciliation was prepared by UNCITRAL in 2002, subsequently Green Book/Paper on Alternative Dispute Resolution in Civil and Commercial Law was published at the same year by EU.1 During these processes many of the EU member states adopted new laws or articles concerning ADR and especially mediation.
When Turkish government as a candidate state for EU organised a committee which began to work on a new Draft Civil Procedure Law in 2004, they included the implementation of ADR methods in their draft work. Subsequently, in 2007 another commission was formed by Ministry of Justice to prepare a Draft Law for Turkish Mediation Law on Civil Disputes. The commission worked on different countries’ legislations and Model Laws, searched about their experiences in the field. “The Green Book about Alternative Procedures Concerning Resolution of Disputes in Private Law and Austrian Federal Law Concerning Mediation in Legal Disputes, Germany’s Baden Würtenberg Reconciliation Law effected in 1999 and Bavaria’s Law on Compulsory Alternative Dispute Resolution in Private Law adopted in 2000, Hungary’s Law of Mediation, and Bulgaria’s and Slovakia’s Laws of Mediation adopted in recent years were considered in the preparation of the draft, as well as UNCITRAL’s Model Law and European Union’s Proposal for Directive. Besides, these documentary sources, meetings were held at various occasions with specialists from countries such as the United States of America, the United Kingdom, Italy, Spain and Canada; and convening with specialists and practitioners from countries such as Germany, the Netherlands and Austria, the developments in comparative law were monitored. Access to justice is a fundamental right secured
under article 36 of Constitution of Republic of Turkey and under article 6 of European Convention on Human Rights. By means of the alternative dispute resolution methods, the parties are included in the reconciliation process and reach a conclusion depending on their intention. Thus, the alternative dispute resolution is a mechanism provided by the state to the individuals for the resolution of the disputes apart from judicial power. Although it may be considered that the parties may resolve disputes by reaching an agreement at any time and by benefiting from the mediation of the third parties, the state is required to make regulations on this matter as well.2
In 2007, while the commission was working for draft law, an important EU project with a wide perspective which aims to introduce ADR methods to Turkey commenced under the provision of Ministry of Justice. The author herself also worked as a key manager in this project3 that aims a better access to justice in Turkey by not only highlighting and developing the legal aid system to ensure that all citizens may have the opportunity to access the judicial system but also introducing ADR processes as a significant mechanism for the same purpose. Turkish legal system and stakeholders met with mediation for the first time by means of the ADR component of this project.
The commission working on the draft law had a long way until the announcement of Law on Mediation in Civil Disputes in Turkey.4 Lawyers, some politicians, NGOs and some members of the judicial system were against the practice of Mediation. Some political parties strongly objected to the possibility that an ADR law enters into force. “Two most populated bar associations of Turkey stood up against mediation, even before it became a part of the
legal system”5. “...the Ankara Bar Association also released a press statement indicating that this mediation mechanism collects the executive and judiciary powers of the state in the same hand; the statement also claimed that the mediation mechanism ignores lawyers and harms the justice.”6 Despite the reluctance of some parties and especially lawyers and judges, Turkish Mediation Law on Civil Disputes (“Law”) adopted on 22 June 2012 and came into force on 22 June 2013, after one year since the announcement. With this development, for the first time in the country’s legislative history mediation has officially became another option for the resolution of civil disputes between parties. Following the enactment of the Law, the Regulation Regarding the Law on Mediation for Civil Disputes7 (the “Regulation“) also came into force on the same date with the Law.
The adoption of the Mediation Law in Turkey may be regarded as a positive progress in Turkish Law. The advantages such as being confidential, time efficiency and cost efficiency make the mediation highly preferable for certain types of cases. At the beginning Turkish legislators preferred “voluntary basis mediation” with motivating rules and a detailed procedure in order to enable and motivate the community to prefer Mediation. One of the important aspects of the Law was the possibility of having 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. In fact, the Civil Procedural Law does not provide necessary authority to use ADR. Thus, it is widely accepted that the Civil Procedural Law should be amended to provide a broad authority for using ADR processes in all civil
cases.”8 This requirement brought another milestone to the development process of mediation in Turkey during judicial reform movements.
Since 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.9 The Article 137 in this new form of Civil Procedure Law provided that the judges are required to ask to the parties about having voluntary mediation process before court procedure at a preliminary hearing. This step was before than 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.10 Model Ethics and Rules for Mediators and Mediation System announced by this board as another important step.
Before the Law came into force, Ministry of Justice established a separate department that is responsible to General Directorate of Legal Affairs. In the beginning, Main role of 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, organising international meetings, conducting exams, 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.
From June 2013 to November 2017 the Mediation Department organised many trainings, seminars, campaigns to raise the awareness about mediation. In these years the high settlement rates in labour disputes through mediation encouraged the Turkish government for providing mandatory mediation for labour disputes. The disputes regarding labour law took an important place in the agenda of jurisdiction. In this term, voluntary mediation process of cases provided amicable settlements without any need to judicial procedure in courts. Statistics demonstrated that 89% of the civil disputes brought to mediators were labour law originated where 90% of them concluded with a settlement.11 These statistics encouraged the government to promote “mandatory mediation” in labour disputes through mediation awareness campaigns, mediation skills trainings, seminars, international conferences and symposiums.
The new Labour Courts Code (“LLC”) including mandatory mediation arrangements in its Article 3 was announced at October 201712 with the enforcement date of 1 January 2018. Pursuant to Article 3, mediation is a pre-condition to a lawsuit where the parties should apply for mediation in order to solve their labour disputes before filing a lawsuit. It is better for parties to attend to the first meeting. Because parties are not responsible with extra court fees, if the dispute solved by mediation. The claimant also obliged to add final written records of this procedure to petition under the condition of non-agreement.
Starting from January 2018 and as of 24 April 201913 approximately 312,645 out of 487,075 Labour Law cases were resolved through mandatory mediation. The mediators who had an extra “LLC expert mediator” trainings reached the settlement with
the rate of 68%. The significant change was especially on caseload as the number of cases decreased 70% this year comparing the last couple of years.
The recent changes in the field with mandatory mediation experience increased the demands to extend the scope of mandatory mediation this time for commercial disputes. Reducing caseload of commercial lawsuits also motivated legislators to establish the Law on Legal Procedures to Initiate Proceedings for Monetary Receivables Arising out of Subscription Agreements14 (“Law No. 7155”) with new articles being added to the Turkish Commercial Code and the Law on Mediation in Legal Disputes.
With this establishment not only the civil commercial disputes became the new subject of mandatory mediation but also the facilitative mediation arranged in Act 6325 now turned to evaluative with the new articles. Thus, only four years voluntary based mediation experience brought Turkey an expanded mandatory pre-litigation mediation system by including commercial disputes with a remarkable momentum. Adopting Act 7155 was the third major step in Turkey to underline the role of mediation in civil disputes resolution. The date of commencement for Act 7155 was 01 January 2019. In practice the same methods and the official system with LLC were set eligible and in the experience of six months 88,876 commercial dispute cases were forwarded to registered mediators. Mediation Department announced that in 68% of these cases parties reached a settlement.15 Even though there are some concerns about the practice, quality of the skills of the mediators, some ethical issues and the enforcement pending difficulties the lawyers, mediators, entrepreneurs are mostly on the positive sides of this ADR option.
According to the recent statistics of Ministry of Justice, currently, the number of registered mediators number is approximately 16,500 in Turkey. In the past two years, nearly 33.000 more lawyers completed 84 hours of mediation basic training certificate program and waiting for the exam of Mediation Department of Ministry of Justice. Furthermore, the bars and remarkable number of the lawyers, judges, academicians made half a turn in their approaches to mediation. “With the shrinking legal market and inflation in the number of lawyers in Turkey, mediation has undoubtedly come to be seen as a new market that offers lawyers a chance to have a bigger piece of the pie. To secure position of lawyers in this mandatory mediation new market, the Turkish Bar Association has also revived the long dormant provision of Article 35/A of the Attorneyship Law, which entitles Turkish lawyers to conduct negotiations and conciliation. The Istanbul Bar Association as well as other bar associations have offered half-price discounts on mediation training programs for members. As such, the range of options available and the motivation to embrace mediation in general has expanded significantly. Nevertheless, Turkish mediators had limited time to develop their expertise in mediation and mediation advocacy -specifically for commercial disputes- given the Act became effective on January 1, 2019.”16
Currently, Mediation Department plans to announce the requirement of “expertise trainings” not only for commercial disputes but also for family/custody, consumer, insurance, banking and finance, construction, energy disputes that are pending for the mandatory mediation for 2020. Another important issue for this area is to increase the quality and the number of the trainings for basic, advanced mediation skills and mediation advocacy. Mediation advocacy trainings only took place in some renewal trainings in limited courses in recent years. That was not in the first
establishment plan, the focus point was mediation but the field experience proved that the lack of mediation advocacy expertise would be a noticeable handicap for future developments.
Legislation, Rules, Centralized Accreditation Mechanism
Act 632517 that came in to force on 22 July 2013 is the first and the leading part of the legislation that regulates the terms and conditions for mediators and mediation. It is an important step of the harmonization of Turkish laws with the EU legislation.
The following national laws and regulations govern the conduct of mediation in Turkey since 2012:
- Code on Mediation in Civil Disputes numbered 6325 dated 7 June 2012.
- Civil Procedural Code numbered 6100 dated 12 January 2011.
- Regulation on the Code on Mediation in Civil Disputes dated 26 January 2013.
- Model Ethics and Rules for Mediators and Mediation System announced by the Ministry of Justice, Mediation Board in March 2013.
- Mediation Fee Schedule annually regulated by the Mediation Department, Ministry of Justice
- Final Decision of Constitutional Court of Turkey, 11 July 2018, 2017/178
- Labour Courts Code numbered 7036 dated 12 October 2017 (LLC)
- Code on Legal Procedures to Initiate Proceedings for Monetary Receivables Arising out of Subscription Agreements (Law No. 7155)
- Regulation on the Code on Mediation in Civil Disputes dated 02 June 2018 (updated)
In Turkish legal system, mainly the use of this alternative dispute resolution may be decided by the parties freely (voluntarily) and they are subject to equal terms and conditions during the mediation process (“equality principle”). Moreover, mediation may be used only for civil cases, whereas the cases which include the claims regarding family violence are not subject to the mediation. In accordance with the above mentioned EU-Directive, this Law is applicable also to the civil cases involving a foreign element. Between 2013-2018 application to mediation option in civil disputes with governmental agencies was prohibited. In the Labour Courts Code, legislator allowed mediation option between governmental agencies and public. This is another milestone in the practice field.
Some of the main principles concerning the mediation in Act 6325 are:
Ban on advertising of mediators: Pursuant to the Law, mediators’ advertising authorities have been limited such that they are not entitled to use other titles than mediator, lawyer and academic titles.18
Confidentiality: Mediators and parties are obliged to keep all documents, information which have been submitted or obtained with respect to scope of the mediation confidential.19
Obligation to exercise diligence and principle of objectivity and independency: Pursuant to the Law, mediators are obliged
to fulfil their duties objectively, personally and carefully. In case of a court case in the same subject in which they were appointed as mediator they are not entitled to be appointed as lawyer, judge or expert.
Duty to provide clarification of parties about the mediation period, its legal principles and legal conclusions: Mediator is obliged to inform the parties about the mediation procedures, legal principles and conclusions and about the document that will be issued after the mediation procedures at beginning of mediation processes.20
Duty to keep the documents: The aim of introducing the register of mediators is to establish a certain order for the use of the title ‘mediator’ and the authorities granted by this title, and to make the supervision of mediators possible.
Equality: The mediator shall be liable to maintain equality between the parties.21
Voluntariness: The parties shall be free to resort to a mediator, to continue or to cease such process.22 In mandatory pre-litigation mediation cases the mediators also can be chosen by the parties and then the name will be registered to National Judicial System (UYAP) or the portal UYAP may directly appoint one of the registered mediators under the eligible requirements.23
Impartiality: The mediator shall personally carry out his/her duty in a careful and impartial manner.24 This situation is clearly stated for the preservation of the confidence of both parties.
Using the title: The mediators entered in the register of mediators are entitled to use the title “mediator” and to enjoy the authorities
granted by this title. The mediator is obliged to indicate this title during the mediation activity.25
“The duty of keeping and updating the register of mediators is given to the Ministry of Justice. Thus, the records concerning all the mediators will be compiled together with a single register to be kept Turkey-wide. In addition, by providing public access to this register and the information – covered in the frame of the principles to be specified in the regulations to be issued in accordance with this article – via Internet, the people willing to access mediator information will easily access such information.”26 After the mandatory pre-litigation mediation came in to force for labour law in 2018, the mediators who had the specified training for this procedures were appointed here as the expert mediator for LLC. Only these expert mediators can take place in these cases. There is not such an extra training enforcement for the mandatory pre-litigation mediation in commercial disputes yet.
The main conditions for the registration of mediators list of Ministry of Justice are;
– Being a Turkish citizen,
– Having at least five years business experience and undergraduate law degree,
– Being fully competent,
– Having no criminal record except intentional offences,
– Completing the 84 hours mediation basic skills training from a Ministry of Justice granted institution, having the approved certificate from there and passing the written exam carried out by the Ministry.
The mediator may commence his/her activities as of the date of registry in the register of mediators. Being registered to this list is extremely important for the mediators, benefited parties and the other parties since the enforcement of settlements could only be possible with a registered mediator’s documents. The only centralized accreditation mechanism is this registry and kept under the control of Ministry of Justice .
The model of mediation services have similarities in both in voluntarily or mandatory options. Parties have right to choose their mediator from the registered list and sign a nominating paper for mediator in mandatory cases.27 If they do not agree about the mediator, they can apply to the court related to Mediation Bureaus for them to appoint one from the registered list by National Judiciary System (UYAP). The mediator should check the eligibility of the civil dispute if it is available for mediation or not under the conditions of Act 6325.28 UYAP is the main source to connect with the mediation system in the country. All the registered mediators have to be connected with UYAP to obtain the applications, documents about parties, other necessary papers, information details of the applicants and to contact with the Mediation Department to send the results of each procedure and send copy of final papers to the department.
“Turkish law regulates both ad-hoc and institutional mediation. The Hacettepe University Arbitration Practice and Research Centre and the Istanbul Arbitration Centre, İstanbul Chamber of Industry, İstanbul Chamber of Commerce provide institutional mediation services. There are also other organisations set up by groups of individual mediators, which serve as institutional mediation centres. Mediation has not yet become a widespread practice in commercial and civil disputes, although it is expected that institutional mediation shall increase the confidence of commercial
parties in the process. The centres providing institutional mediation services, despite some similarities, usually have their own rules and use only Turkish legislation for the mediation process. They also provide secretarial services during the mediation process. There are no separate official statistics on whether commercial parties opt for institutional mediation or ad-hoc mediations.”29
“the position of the government in the mediation field is reasonably ruling that ADR process sometimes is under the risk of being overregulated. The government oversight body, the Mediation Division (“the Division”), established at the Ministry of Justice, keeps the registry of mediators, conducts exams, provides permission for training and certification, and promotes and monitors the overall mediation policy.“30
Enforcement of the Settlements
“Under Turkish law, executing a settlement agreement is not sufficient to make it enforceable. To enforce a settlement agreement, the parties should obtain an annotation on the enforceability of the agreement from the competent court. Drafting a settlement agreement in an accurate manner which will be approved by a court is crucial in order not to spend time or give rise to any further costs. An annotation on the enforceability of the agreement is similar to a decision given by a court. A settlement agreement concluded by mediation does not differ from a settlement agreement concluded apart from mediation. Both proceedings are implemented in the same way before a court, and the settlement agreement drawn up at the end of both proceedings resembles a court decision.”31 For the enforcement court be able to issue such a commentary it has to determine that the dispute
resolved by means of agreement arose from an affair on which the parties may freely have a disposal and that is suitable for compulsory execution with respect to its contents.
During ongoing lawsuit proceedings, if the parties bring a settlement agreement reached through mediation or through any other alternative dispute resolution method before the court decision, the court shall decide according to the agreement between the parties. The court decision will be the natural enforcement.
“By virtue of the provisions of the Code of Mediation in Civil Disputes the legal nature of the agreement document -which is drafted as a result of the mediation- and its enforceability before foreign courts raise some questions. Indeed, as per Article 18 of Code of Mediation in Civil Disputes with the heading of “agreement by the parties” envisages that if the parties come to an agreement as a result of the mediation, a document reflecting this agreement is to be signed by the parties and the mediator. For the agreement document to be enforceable, the parties must apply to civil court of peace in order to obtain enforceability decision. Thus, the parties may enforce the decision reached as a result of the mediation as if it is a court decision.
It is to be noted that the same provision also regulates that if the agreement document that is signed by the parties is also signed by the parties’ authorized lawyers, the agreement document is considered to be a document bearing the same enforceability power that court decisions have without the parties having to obtain a decision from the civil court of peace in the first place.
In both cases, it is uncertain how this agreement document is to be enforced if one of the parties is a foreigner who does not abide by the terms of the agreement document and who does not have any assets in Turkey either. Because a recognition action before foreign courts would be needed under these circumstances for the
enforcement of the agreement document in foreign countries and considering that the agreement document is neither a court decision nor an arbitral award, there might arise problems during the recognition of the agreement document.”32 The figures and official statistics are all above on the page. There were two different sides for the promotion of mediation; public and legal community such as lawyers, academicians, judges etc.
“In Turkey, the promotion of mediation has been relatively more formal and dull, yet promising. The Turkish Mediation Department of the Directorate General of Legal Affairs, established under the Turkish Ministry of Justice, has been the main supporter and promoter of the use of mediation. The Department has sent text messages regarding the mediation process to court users registered on UYAP (National Judiciary Informatics System) and has distributed posters, brochures, and leaflets to courts, chambers of commerce, and guilds. It has also launched a website and hotline to provide information about mediation.33 The department has aired several public service announcements (PSAs) that emphasize the advantages of mediation in terms of time and cost.34 Three mainstream Turkish TV shows have also been commissioned by the department to introduce mediation as an alternative mechanism in their story lines.35 A recent survey indicates that PSAs and lawyers are court users’ main information and encouragement source to use mediation. The hard work of introducing mediation should not be undermined, and these attempts are heading, to be sure, on the right track. However, there is more to do. The Turkish audience needs to absorb mediation by identifying themselves with the lead characters in mass media who
experience mediation or with plots that will provide see the involvement of ordinary people in mediation practice.”36
The other side of the promotion for public and future beneficiaries of mediation was to provide some unusual advantages like enforcement of the settlement agreement, time efficiency, cost efficiency with settled tariffs, flexibility, settlement agreements are being subject to fixed stamp duty and fees.
For the legal community, especially for lawyers the most important two promotions were to keep the mediation profession privileged for law undergraduates and to guarantee the payment of the first two hours of mediators’ fee by the government if there would be no agreement. Also Mediation Department organised many conferences, seminars, communication groups and training materials for the stakeholders of this community. Mediation department also supported two exclusive international project for promotion.
Commercial Mediation Istanbul Pilot Project at Grand Bazaar. 2015-2016 Commercial Mediation Istanbul Pilot Project has a large scale public awareness campaign and improved the implementation of Turkey’s Law on Mediation for the resolution of disputes over 3,500 shops.
Improving Better Access to Justice in Turkey through ADR mechanisms. I- II Project 2016-2017: During the terms of Improving Access to Justice Turkey through the ADR Mechanisms I-II projects, over 250 seminars, TOT programs, workshops, conferences, and trainings, study tours conducted for lawyers/legal professionals, judges, prosecutors, civil sector, and business community in more than 45 cities throughout Turkey.
Chapter 3 Professional Mediation Institutions and Professional Standards
There are approximately 65 Mediation Associations and 200 private mediation centres in Turkey for now. These entities i.e here defined as Mediaton Centres are waiting for the accreditation of their cridentials after legal framework about these cridentials will be defined and announced by the government where the MOJ’s councils are working on. Nominated Arbitration Institutions in the ADR arena organised mediation services under their umbrellas. İstanbul Chambers of Commerce, Ankara, Mersin, Bursa and Kayseri Chambers of Commerce have Mediation and Arbitration Centres. Some of the professional institutions designed mediation services for the need of their members. Istanbul Chambers of Industry has a Mediation Centre, The Turkish Employers Association of Construction Industries (INTES) and Istanbul Apparel Exporters’ Association (IHKIB) have a mediation centre as in that concept.
Since the setting up of institutional mediation centres is currently not regulated by law so the service criteria of the mediation sections in these Centres are formed only due to the present Turkish Law and Conducts. There are also other organisations set up by groups of individual mediators, which serve as institutional mediation centres as the same manner.
Mediation Department is also responsible for the performance of mediation services and for supporting academic work on mediation institutions. The Registry of Mediator records are kept by the Mediation Department. Accreditation mechanism is regulated by Act 6325 and only these accredited mediators are able to prepare official documents for enforcement.
Mediation practice is very young in Turkey and still expanding with new practices, institutional mediation will expand in the near future, following the enactment of the relevant legislation.
ADR-İstanbul, a new entity, started to constitute a platform to design an international institution in Istanbul to cooperate with universities and foreign mediation centres to establish trainings and cross border dispute resolution in international professional standards.
The main independent mediation institute owned by the government is the Board under the Legal Affairs Mediation Department, this board includes members from judges, bar associations, universities, chambers of commerce and mediators, and has special duties. By providing for the appointment of representatives from the professional organizations and public bodies – which are directly or indirectly involved in different fields of justice – to the Board of Mediation, it is aimed to provide objectivity by establishing a balance in the fulfilment of the duties specified in the law. The duties of the Board are as follows:37
– Determining the basic principles concerning the mediation services and the codes of practice of mediation,
– Establishing the basic principles and standards concerning the mediation training and the examination to be held at the end of such training,
– Determining the rules concerning the supervision of the mediators,
– Amending, if necessary, and finalizing the draft regulation which should be issued in accordance with this Law and is prepared by the Directorate General,
– Cancelling the training licenses of the training institutions,
– Deciding to delete a mediator from the register within the scope of the second paragraph of Article 21,
– Setting the admission fee and yearly dues to be paid by mediators to the register,
– Approving the Minimum Wage Tariff, by making amendments if necessary,
– Making recommendations to increase the efficiency of the activities to be carried out by the Department,
– Delivering opinions about the annual activity report and plan of the Department,
– Determining the contributions that may be provided by the institutions and organizations in relation with the matters included in the activity plan of the Department.
Any mediator annexed to the court or other institutes.
In Turkey mediation is not court-annexed for now, judge should offer a mediation session to the parties at the preliminary hearing but court procedure and mediation proceedings are strictly independent from each other. Mediation proceedings are not conducted under the shadow, control or safeguard of the courts in Turkey. Thus, courthouses do not have annexed mediators.
The mediation bureaus are established in most of the courthouses in Turkey and to take the application and appoint a mediator (through UYAP). The personnel of the mediation bureaus have administrative duties and most of them had mediation training by the provision of Justice Academy. They are the official personnel of the Government; they are not court-annexed mediators.
The requirements-qualification of mediators in these organizations
The Mediation Department, under the Ministry of Justice shall keep the register of the persons who have attained the authority to mediate in private law disputes. The information pertaining to the persons included in this register shall also be announced electronically by the Department. The procedure and principles concerning the keeping of the register of mediators shall be designated in the regulations to be prepared by the Ministry.
The training model of mediators
In order to be qualified as a mediator it is required to complete 84 hours long essential training and pass the written exam. I have explained the other conditions above. Additionally, 24 hours long certified training is mandatory for labour law expertise. A mediator is required to tae at least 8 hours long refreshment training in every three years. Legal regulations are in this respect. Currently, Mediation Department manages on further mandatory expertise trainings for mediation in the areas of energy, insurance, healthcare, banking and finance and construction. It is mandatory in the essential training to apply the modules that are in the training book published by Mediation Department. These modules are Mediation Skills, Negotiation Techniques, Legislation, Ethical Principles, Case Studies, Theory of Conflict, Processes of Mediation. Mediation training is permitted to conduct only by
universities and bar associations permitted by Mediation Department. The certificate, which is required to be able to attend to the written exam, can only be taken by these institutions and by completing trainings that have attendance requirement. By the year 2019 there are a coordinator and instructors approved by Ministry of Justice for each institution permitted to conduct training. The main purpose is to increase the quality of training. Mediation Department closely oversights all stages of the training. In addition, there are many feeless or limited fee workshops that do not have independent centre certification.
The assessment mechanism
Oversight of mediators is regulated with legislation and is executed by Mediation Department and Mediation Board. The aspect regarding which criteria will be effective for efficient oversight, assessment is limited with compliance with acts, regulations and ethics codes.
There are no centres yet which are different from others with their qualifications. Since the main criteria are designed for more local systems, there could be less cases in institutions which have mediation cases completed in accordance with the ethics codes. However, this information should not be misleading regarding performing the qualified processes.
Any development focus on the continuous development on the professional mediator.
While mostly legal regulations and legal principles are to be found in the refreshment trainings or expertise trainings, it is also encouraged that the experts in sector be an instructor. Besides, there are practice studies. Bilgi University and ADR İstanbul concentrate mostly on “Improving Mediation Skills”, “Mediation
Advocacy” and “Mediation Ethics” in the refreshment trainings. After being a signatory for Singapore Mediation Convention that team will begin to establish new programmes to support the development of mediators as an international cross/border dispute resolution experts.
The natures of disputes frequently use mediation
Any private law matter subject to parties discretion can be subject to mediation regardless of such matter having a foreign element. It is currently mostly used in employment disputes, separation of assets disputes, real estate, insurance and commercial disputes.
Number of mediators/accredited mediators in the organization and in all of the area.
According to the Ministry’s recent statistics, the registered mediators is approximately 16,500, nearly 33,000 lawyers completed 84 hours of mediation certificate program and waiting for another exam in order to be registered as mediators. The examination shall be held by the Ministry, and in a written format. The exam format was different, the practical examination was cancelled due to high volume of applications.
Starting from January 2018 and as of today (12.08.2019), approximately 299,668 labour cases resolved through mediation. The settlement rate is 68% and the number of cases that has been appointed mediators is 127,845. The significant change is seen especially on the caseload as the number of cases decreased 70% this year comparing the last couple of years. As a result, the recent changes in LLC has tremendously increased the demands for mediation trainings, especially mediators would like to have more practical skills in order to respond the high amount of request from the parties. Mandatory mediation is extended for commercial
disputes in the beginning of 2019. Since January 2019, 88,876 commercial cases resolved through mediation. Family disputes and consumer disputes are pending for the mandatory mediation for 2020.
Finally, the effective use of mediation and conciliation is listed in recently published the Government of Turkey 100 Days of Action Plan.
Chapter 5 Comprehensive Development in Integration with Other Professions
Is there any mediation advocate training and accreditation for advocates
Mediation advocacy training has not been taken into consideration at the beginning of the practice at 2013 by the government; the focus was about only mediation. Due to the advocacy problems in mediation sessions during 18 months field practice period, İstanbul Bilgi University for the first time began to prepare Refreshment Mediation programmes with mediation advocacy.
As mentioned above only law school undergraduates are allowed to be mediators by fulfilling also the other credentials by law so the main issue is ninety percent of registered mediators are also active lawyers. Thus, that situation caused an important problem for mediators to realize the differentiation between two practices. By the time there were some limited programmes at one or two more universities and some workshops were took place about mediation advocacy until 2016.
Within the framework of “Improving Access to Justice Turkey through the ADR Mechanisms I-II” project sponsored by the British
Embassy (2016-2017)38 in association with Ministry of Justice, Mediation Department, the importance of Mediation Advocacy trainings were strongly underlined by the government and over 250 lawyers were trained in 3 days mediation advocacy trainings as an important step before mandatory mediation process. “Mediation Advocacy and Preparation for Mediation” book which were written by Mr. Andrew Goodman39 were translated into Turkish by the Ministry of Justice and 5000 copies were of them circulated at the court houses .
SCMA; Director. AMATI by LinkedIn
Where only the law graduates are taking roles in this procedures the need of much and advanced mediation advocacy training is still so high. For now, there is no extra accreditation for mediation advocacy. The legislators are now working about this matter with also about international accreditations for the mediators.
The practice in electing mediation advocate and mediation.
The mediation models are limited in Turkey for now and the system is developing day by day so with an increasing demand for quality and success for better dispute resolution these practices will also improve here. Singapore Convention will be another motivation for all parties to upgrade themselves and the system to the international standards.
Chapter 6 Participation in International Market
The experience of resolution international cross border disputes are limited for now. The main reason is the lack 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 through country-wide
at the beginning. In six years of practice huge steps were taken in local system but since Turkey was not a signatory to any binding international treaties or bilateral agreements on mediation, only local law standards are in charge so international dispute resolution is very limited only with individual case proceedings. Turkey now is a signatory of Singapore Mediation Convention, that move brought new targets and standards to Turkish legislation to compete globally in international cross border dispute resolution. The target is to be one of the important and reputative Dispute Resolution Location for the Greater Region (Africa, İslamic World,Caucusus &Central Asia) Especially in İstanbul there are new presentations of entities as ISTAC (İstanbul Arbitration Centre) about mediation-arbitration, med-arb rules and some other platforms like ADrİstanbul are working on international cridentials for dispute resolution tools, ethics and quality standarts of the prosedures. Number of the mediators that accredited international are also increasing. MoJ boards, councils and bureaucrats are focused on the updates and the new configuration of Law 6325 and the ratification of Singapore Mediation Convention.
When mandatory mediation was introduced for labour law disputes on 1 January 2019, there have been many mediation cases regarding construction disputes or employer-employee disputes whose majority is disputes regarding Turkish employees working at consortiums abroad and foreign employees working at consortiums in Turkey. It is declared by Mediation Department that more than 45,000 cases are resolved by this procedure. The major concern in this regard is the possibility of not been conducted in accordance with the mediation ethics. Lastly, in June 2019 Turkish Court of Appeal ruled a decision40 that affirms the mediation ethics is not complied regarding these mediation cases taken to the courts. Thus, it is essential to comply with ethics rules. Increasing the number of training, providing control on this issue and
providing mediation practice in international standards may solve these problems.
Practice studies, case studies and ethical codes are required mostly for mediation professional. Besides, there are too less Mediation Advocacy trainings, whose number should be increased. Enhancing the mediation skills is highly important. It is also important to improve the ability to perform the accurate mediation because of the fact that most of the mediators perform advocacy simultaneously. New training models should be prepared by accepting the fact that specialization is to be with sector experience rather than improving the theoretical legal knowledge in this area. Currently, international dispute resolution experience is very limited in mediation. The number of mediators who are experienced in this area and can be registered to Mediation Registry is also considerable low. Practice trainings and shadowing exercises contribute in these issues.
Chapter 7 Conclusion
Whereas Turkey lost some time while taking the road, latter considerably proceeded with fast steps in order to provide acknowledgment for mediation as a dispute resolution mechanism. Planning the process, selection of models to apply, establishing criteria have been a polemical process. However, the government is ready to take more conscious steps at all stages, after the mediation practice was commenced in 2013. The fact that only law graduates are allowed to be a mediator, regulations on everything from education to control, size of the signboards, selection of educational institutions and the fact that the government monitors everything with legislation contribute to this process as much as these cause to decrease on speed of development. Everything regarding mediation that mostly performed in national law issues is still evaluated according to the
legislation and this inconveniences enhancing the quality of mediation practice itself, increasing the number of mediators accredited in international platforms or use of mediation mechanism in a broader scope.
Now, Turkey is one of the signatory state of Singapore Mediation Convention and getting ready to be a part of an international convention in Mediation area for the first time. It is clear that this move will generate new opportunities for the mediation practice in Turkey. However, most importantly, it is required to enhance the quality of trainings, improve not only the written exams but also internship-shadowing practices as in advocacy, increase the number of centres which have international standards, accredited Turkish mediators that have international mediation certificate, support cooperation with international mediation centres and promotion of seminars and workshops. It is important to apply international criteria in Turkey by permitting mediation trainings held in foreign language, appoint certified mediators trained in Turkey for the disputes subject to Singapore Mediation Convention and provide accreditation for them.
ADRİstanbul, which the author is among its founders, operates actively and cooperates with different local and international Universities and Mediation centers for improving the international mediation opportunities in Turkey.
By Ferda Paksoy, IMI Certified Mediator,Founder of Adrİstanbul