What Is Mediation:

A neutral third person, known as a mediator, enables discussion and negotiation between both sides to assist them achieve a mutually acceptable settlement to their issue. Mediation is a type of alternative dispute resolution (ADR) used in the legal profession. Although it may additionally be utilized in criminal proceedings and other legal settings, this procedure is frequently employed in civil matters.

It should be mentioned that arbitration is (mostly) a voluntary alternate conflict resolution before moving on to describe the mediation process. The continuance of the mediation process and the parties’ reaching of a settlement are optional, even under the case-condition mediation (mandated mediation), which will be covered in the remaining sections of this article. because nobody can be made to settle a disagreement by another person.

1. Consent of the Parties to Mediation:

Under Article 13 of Mediation Law No. 6325, the parties to a dispute may agree to request the services of the mediator prior to and following filing a lawsuit. As a result, if both parties agree to use the mediator, we may claim that the mediation mechanism can be used at any point in the disagreement. The court may also notify or urge both sides to apply to the mediator if a lawsuit is brought over the disagreement between the parties. Alternately, one of the disputing parties may make the other side an offer to apply for the mediator prior to or following the lawsuit is filed. According to Article 13 of Law No. 6325, if the other party does not reply favorably to an offer to apply for mediation within 30 days, it is presumed to have been refused. The court will postpone the trial for a maximum of three months if the parties agree to jointly apply to the mediator after the case is filed. Again, in accordance with Article 15 of Law No. 6325, this time frame may be extended by an additional three months pending the parties’ joint application to the court.

2. The Parties’ Selection of the Mediators:

In mediation, a third party who is impartial, independent, and knowledgeable about the dispute—even if that person is not an expert—investigates and assists the parties in reaching a resolution. Even for this reason alone, the parties may feel secure. The parties can apply to participate in mediation at one of the many centers for mediation that have been set up around Turkey, and they can select a mediator there. These organizations oversee the mediation procedure, maintain a list of mediators, and plan mediation training. The mediator must be unbiased and independent, as well as authorized to mediate.

3. One of the parties makes the following request to the mediator:

One of the parties submits an oral or written petition to the mediator to begin the mediation process once everyone has agreed to engage in it and the mediator has been chosen by the parties.

4. Acceptance of the Mediator: The Mediator reviews the application after receiving the request seeking mediation and determines whether to accept the procedure.

5. The Parties’ Preparedness:

It is crucial that the parties be ready for the mediation process before it begins. Documents and other pertinent material to be utilized in the discussions should be given to the mediator by the parties.

6. Meeting of the Parties: 

One of the most crucial phases of the mediation procedure is the gathering of the parties to attempt to settle the conflict. Together with the mediator, the parties address the issues at stake, as well as their expectations and requests.

7. Mediation Meetings: 

The mediator and the parties negotiate at these gatherings of the parties. The mediator facilitates discussion between the parties, listens, and makes suggestions for resolutions. In the negotiations, the parties might state their own requests.

8. Reaching a Settlement:

During mediation, the parties look for a common ground on which to compromise to settle their differences. Under the mediator’s supervision and instruction, the parties communicate and negotiate with one another. The sides attempt to compromise by considering their respective interests. The mediator will draft a settlement text if the parties are able to come to an agreement.

9. Acceptance of the Settlement Terms:

Upon receiving the parties’ signatures, the settlement language is deemed approved. The parties concur that the settlement is legal and that they must abide by its requirements. The mediation procedure must now be concluded with judicial permission.

10. Court Approval:

The settlement text is filed for court approval once the parties have signed it. The settlement is examined by the court to see if it conforms with the law. The court approves a settlement agreement if it contains clauses that reflect the parties’ intentions, are legally valid, and do not violate public policy.

11. Execution of the Settlement:

Upon completion, the finalized settlement language is an enforceable legal instrument. The terms of the agreement document must be followed by the parties. The court’s ruling supports the enforceability of the settlement, guaranteeing that the parties would uphold the rights and responsibilities stated in the settlement agreement.

Types Of Mediation:

Mediation that is required (Zorunlu Arabuluculuk):

Overview: Prior to proceeding to court litigation, certain civil issues must first undergo mandated mediation in Turkey. By urging parties to try mediation first, it seeks to lessen the load on the Turkish judicial system. Only then may the parties move on with a court lawsuit if the mediation procedure is unsuccessful.

Application: Conflicts involving family law issues, labor and employment conflicts, business proceedings, and some administrative cases are frequently subject to mandatory mediation.

Process: Parties must apply to a mediator certified by the Turkish Ministry of Justice when obligatory mediation is necessary. If a settlement is achieved through mediation, it is made legally binding by the mediator. If no agreement is reached, the parties can then file a lawsuit.

Mediation with a Court Annexed (Mahkeme Arabuluculuğu):

Overview: As its name implies, court-annexed mediation is a type of mediation that is intimately connected to the legal system. In Turkish courts, it is encouraged and frequently presented as a choice to those engaged in civil litigation matters.

Process: Prior to holding a formal trial, the court may order the parties to mediate their differences with the assistance of a mediator who has been appointed by the court. Any agreement struck can be filed to the court for authorization and execution with the mediator’s assistance.

volitional nature While mediation with court annexation is recommended, participation is often optional and up to the parties. However, the court could strongly advise mediation in particular circumstances.

Mediation Methods:

Mediation via Arbitration:

Overview:

Arbitrated mediation, occasionally referred to as “Med-Arb,” is a fusion of mediation and arbitration that is used to resolve disputes. The “Med-Arbiter,” a third person who is impartial in the process, performs the roles of both a neutral third party and an arbitrator. The first step of the procedure is mediation, during which the Med-Arbiter assists the parties in speaking, negotiating, and trying to come to an understanding. The Med-Arbiter, however, changes into an arbitrator and renders a binding judgment if the mediation process is unsuccessful in producing a settlement, much like a conventional arbitration procedure.

Benefits: 

Offers a well-organized method for resolving disputes.

can result in a speedy conclusion through mediation, but if arbitration is required, it guarantees a definitive resolution.

minimizes the necessity of separate arbitration and mediation processes.

Web-based Mediation:

Overview:

Online mediation, commonly referred to as e-mediation or virtual mediation, also is a type of mediation that is carried out fully online or via technological means of communication. It enables remote participation in the process of mediation by facilitating communication between the parties and the neutral using technology.

Process:

Video conferencing, email correspondence, or the usage of specialist online mediation platforms are frequently used in online mediation. To debate the problem, consider options, and negotiate a settlement, the parties and mediator digitally meet, just as they would during a regular face-to-face mediation session.

Advantages:

gives those who are unable to meet in person flexibility.

reduces expenditure and travel time.

access to a larger pool of arbitrators from various locations is made possible.

Conclusion:

With many benefits and a beneficial effect on people, organizations, and society at large, mediation is a very valuable and constructive method of resolving conflicts. By enabling them to actively engage in creating their own solutions, it strengthens individuals and entities involved in disagreements. People feel that they have some influence over what happens, which might empower them on their own. This encourages self-determination.

Additionally, mediation frequently results in lower costs than litigation, which eases the financial strain on people, corporations, and the legal system. Compared to protracted court cases, it results in quicker outcomes and allows parties to get on with their lives or enterprises. This speedy processing is especially useful in professional and private concerns where delays can be expensive.

In addition to the benefits in terms of money and time, mediation excels in maintaining relationships. This is a key factor, particularly in situations involving disagreements in the home, the business, or the society. The mediation process is private and discreet, which stimulates open conversation, lessens the fear of being exposed to the public, and enables parties to talk about delicate topics in a secure setting.

Another advantage of mediation is its versatility, which enables it to be customized to meet the requirements of each disagreement, making it a versatile and adaptable technique of conflict resolution. Additionally, it lessens the strain and emotional cost sometimes connected with litigation, encouraging parties to concentrate on cooperative resolutions rather than combative disputes.