MEDIATION IN TURKEY
Our mediators and attorneys can assist in all the stages of Mediation in Turkey, which can refer to the preliminary examinations, an invitation to the mediation process, negotiations, and court recognition.
Mediation in the Turkish Legal System
The mediation method was implemented in the Turkish Legal System with the Law on Mediation in Legal Disputes ("LMLD") "No. 6325" on 22 June 2012. In addition to this primary legislation, the Regulation on Law of Mediation in Legal Disputes was published on January 26, 2013, as the secondary legislation.
Principles of Voluntariness and Equality
parties are free to resort to a mediator, to continue, finalize or terminate the procedure. The parties agree to finalize such a dispute primarily using mediation. While the parties cannot be forced to seek mediation, they can also terminate the process of mediation at every stage of the negotiations.
The parties shall have equal rights both during the application process and during the procedure. A party cannot be deprived of participating in the mediation process or its ability to assert claims.
Privacy is regulated by Article 6 of the Regulation on LMLD. Accordingly, unless otherwise decided by the parties, the mediator is obliged to keep secret any information and documents, and other confidential records submitted to him or the others that were obtained in due course. Unless otherwise consented, the parties and their legal representatives are also obliged to abide by this principle.
Impartiality of the Mediators
Under the Regulation on LMLD, a mediator shall act impartially while conducting mediation and cannot exhibit any attitude or behavior causing any doubt concerning his impartiality.
Termination of The Mediation
According to the Regulation, the mediation activity will conclude in case the following circumstances
a) The fact that the parties have agreed on the subject of dispute,
b) After having taken the advice of the parties, if the mediator has evaluated that it is fruitless to make a further effort for mediation;
c) If a party has advised the counterparty or the mediator that it has withdrawn from mediation activity,
d) If the parties consensually have terminated the mediation activity.
e) If the dispute is not favorable for mediation or it has been fixed as being related to an offense not included by compromise by the Penal Procedure Law No:5271.
Agreement of Parties According to the Regulation, the scope of the agreement reached at the end of the mediation activity must be determined by the parties. Then, the said agreement must be signed by the parties and the mediator.
If the parties have come reached an agreement at the end of the mediation activity, they have the right to demand an annotation indicating that this agreement has a binding effect as if it is a court judgment.
If the mediation has been initiated before registering a lawsuit then, it is becoming possible to demand from the court where the lawsuit is pending, to confer an annotation indicating that the agreement has a binding effect. An agreement containing such an annotation is considered a court judgment.
Which Types of Disputes Can be Mediated?
Under Article 1 of the LMLD, private law disputes arising from actions and transactions which the parties may freely decide on, including disputes involving foreign elements, are eligible for mediation. Importantly, the Regulation especially emphasizes that any claim that consists of domestic violence cannot be subjected to mediation.
Obligatory Mediation in Turkish Legislative System: Mediation on Labor Disputes
The Law on Labor Courts ("LLC") "No:7036" entered into force on 25.10.2017 by introducing a revolutionary move to Turkish legislation and practice of labor disputes. According to Article 3 of the LLC, it is mandatory to apply to mediation before filing a lawsuit on the grounds of debt and compensation claims arising from the law, individual or collective labor contracts, or reemployment claims.
According to the Article, the mediation process should be concluded within three weeks, but taking into account the course of events the mediator may extend this period for one week.
A Mediation Centre in the heart of Bosphorus: Istanbul Arbitration Centre (‘’ISTAC’’) Arbitration Service
Being an independent and impartial institution that provides dispute resolution services, ISTAC also offers mediation services under the ISTAC Mediation Rules alongside its sterling arbitration services.
To resolve disputes by mediation before the ISTAC, a mediation agreement or a mediation clause in the relevant contract that refers the dispute to the ISTAC Mediation Rules is required.
Although the parties have not made a mediation agreement or included a mediation clause in the contract between themselves, they, nevertheless, may willingly commence the mediation process under the ISTAC Mediation Rules.
Thanks to its neutral and well-organized structure assisted by competent staff, ISTAC has been inarguably demonstrating a functional and constructive service of mediation Services for Turkish and foreign actors.
Should you have any other questions or inquiries about Mediation and International Arbitration, you may reach us