An Alternative Method Of Resolution In Legal Disputes: Mediation

Mediation, which is an ancient institution as old as the history of humanity, has continued to exist as an alternative dispute resolution method.

MAGAZINE 29.11.2021, 13:20
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An Alternative Method Of Resolution In Legal Disputes: Mediation

Mediation is as old as human history. People in society have tried to solve the disputes between them either on their own, or through the arbitration or mediation of the persons they know to be impartial and reliable, and sometimes through other people's initiatives. After the emergence of the state and the increase in its functions, the resolution of disputes began to be carried out by the state; however, mediation, which is an alternative dispute resolution method, continued to exist. Even though the state's adjudication of disputes allows for objective and confidence elements, justice cannot be reduced to the desired extent and pace, mainly because the judicial authorities cannot keep up with the speed of increase in the number of disputes. For this reason, in addition to resolving disputes through litigation, alternative solutions have been developed in both criminal and commercial law areas as well as labour law. In terms of criminal law, although there are significant differences between conciliation institution and mediation , an alternative solution has been brought under the name of mediation in private law.

This is especially valid in the fields of labour law and commercial law, as well as the previously accepted conciliation institution, which is similar to mediation in terms of being dependent on the agreement of the parties. Nevertheless, it must be remembered that these alternative solutions are not applied in all areas and subjects of law and that the dispute in particular concerning public order does not necessarily cover legal issues that need to be resolved by judicial authorities. Mediation, which is similar to institutions such as conciliation, arbitration and settlement in terms of purpose and essence, but different from them, gained a legal identity with the Law on Mediation in Civil Disputes (HUAK) numbered 6325 in Turkish law. In article 2/b of HUAK, Mediation is defined as "voluntarily executed dispute resolution method with the participation of an

In addition to resolving disputes through litigation, alternative solutions have been developed in both criminal and commercial law areas as well as labour law

impartial and independent third person who has the specialised training, who brings the parties together to negotiate and settle by applying systematic techniques, establishes the communication process between them to ensure that they understand each other and thus produce their solutions."

Prolonged trials may be binding for the parties to the court's ruling, but difficulty in accepting this verdict, especially for the opposing party, hinders the enforcement of the rulings and even causes other problems. The solution of disputes by the judiciary has adverse sociological and psychological effects along with the fact that it is costly. Although dispute resolution in court is the first method that comes to mind, it should be, in fact, the last alternative. Through voluntary mediation between the parties, disputes are resolved considerably shorter and cost-efficient while the parties accept the result. Therefore, as a result of the mediation activity, the decisions made with the parties' consent may be implemented more. Resolving disputes according to the consent of both parties indirectly affects social peace and strengthens the social structure.

In addition to Turkish positive law, Islamic law also takes the basis of settling disputes by judges at courts, and it places great importance on alternative solutions such as arbitration and settlement. While the settlement is mostly like a contract between the parties on resolving the dispute, arbitration stands closer to the judicial activity. In addition to these concepts, there is another institution called "Islah-ı zatil beyn" in Islamic Law, which corresponds to today's mediation in terms of the function it performs. Rules on procedure, form and attribution in the proceedings of judges in the courts are absolute, while in the arbitration, this procedure is relatively softened. In the mediation activity, the rules on form and denomination are almost not used because volunteerism and willpower are the basis in mediation in Turkish law as well as in Islamic Law. As can be seen from the definition of mediation, mediators are neutral, independent persons with specialist training and ensure that communication between the parties is established

Although dispute resolution in court is the first method that comes to mind, it should be, in fact, the last alternative

and operated healthily. With the help of mediators, the parties solve their problems independently, under their sole responsibility, in healthy communication channels and negotiation environments. Otherwise, the mediators cannot make any decision on the merits of the dispute. With this feature, mediation differs from arbitration. The muslih (mediator) position is not different from this in the practice of mediation, which is expressed as Islah-i zatil bey in Islamic Law. Concluding the solution reached by the parties through a mediator with a contract can be described as a settlement agreement. In other words, the process that starts with mediation ends with a settlement if an agreement is reached. In today's Islamic law applications, the corresponding term of the mediation institution is "wasata." Mediation, which has been practised in many legal systems and societies for centuries, was institutionalised in the 1960s in the Anglo- Saxon legal system. From here, it passed to Continental Europe and started to institutionalise in this system with legal regulations since the 2000s.

In the history of Islamic Law, regarding family law,the practice of finding a mediation by an (arbitrary)committee consisting of the families of the spouses who have reached the stage of divorce, in the 35thverse of the chapter of Surah An-Nisa, stands closer to mediation in terms of today's legal practices. As a matterof fact, it is not possible for this committee, which was formed only to reconcile the parties, to decide to divorce spontaneously without obtaining authorisation on this issue. It is understood that although the text of the verse contains the expression of an arbitrator, it is closer to mediation in terms of the task performed. Regarding Turkish law, disputes concerning, in particular, domestic violence allegations are outside the scope of mediation (HUAK art. 1/2). Once the dispute is brought to court, the process is often no longer under the parties' control, and strict rules of law become effective. In other alternative emedies, particularly mediation, the parties participate directly in the solution process, and usually, the parties are sovereign in the process. This sovereignty is at its

Resolving disputes according to the consent of both parties indirectly affects social peace and strengthens the social structure

peak in mediation. There are some basic principles of mediation. The first of these principles is that the process is voluntary. The parties are free to apply, continue, conclude or abandon the process, except in the areas where mediation is mandatory. In some areas of labour law and commercial law, it is obligatory to apply for mediation to file a lawsuit. With this obligation, it is basically aimed to reduce the workload of the judiciary. Another principle that dominates mediation is equality. The parties have equal rights both in applying to the mediator and in the whole process. The mediator must also observe this equality between the parties throughout the entire process. Another principle that dominates mediation is confidentiality. Unless otherwise agreed by the parties, the mediator is obliged to keep the information and documents private along with other records submitted to her/him or otherwise obtained within the framework of the mediation activity (HUAK art. 4/1). Due to this obligation, the mediator may be qualified as one of the persons under the obligation to keep secrets and may withdraw from testimony to the extent prescribed by law. As a result of the mediator's violation of this obligation, it is possible to be subject to criminal sanctions as well as administrative sanctions such as being deleted from the registry.

The parties may also seek the legal responsibility of the mediator. The obligation to comply with the confidentiality rule also applies to persons working with the mediator, trainees under her/his supervision, Ministry and Board officials. One of the most important reasons why the parties want to resolve the dispute by using the mediation method other than the judicial authorities of the state is that they do not want this dispute to be known to others. Hearings, which are an essential stage of judicial activity in the courts, are taken place publicly. Knowing a dispute regarding high amounts or confidential information for the parties may harm the commercial reputation of the parties.

Through this mediation, the parties focus solely on resolving the conflict without the risk of exposing their trade secrets and confidential information to others. The parties participating in the mediation negotiations, the mediator and, if any, other persons, when a lawsuit is filed or arbitration is resorted to, the invitation letters regarding mediation and their willingness to participate in mediation, the proposals and opinions of the parties during the negotiations, the views put forward, suggestions, facts or statements regarding the acceptance of the claim, other documents prepared due to the mediation activity cannot be used. This prohibition is a continuation of the confidentiality principle that dominates mediation. Mediation, which ends with the agreement of the parties, turns into a settlement. Also if the mediator concludes that it is unnecessary to make more efforts for mediation after meeting with the parties, the process is terminated. Since the process is carried out voluntarily within the framework of the principle of equality between the parties, mediation also ends when one of the parties notifies the other party or the mediator that he or she has withdrawn from the activity. In addition, although the parties cannot agree on resolving the dispute, they can agree to end the mediation. Mediation ends with this agreement. Mediation can also be terminated if it is determined that the dispute between the parties is not suitable for mediation.

If an agreement is reached at the end of the mediation activity, no parties can file a lawsuit regarding the agreed matters (HUAK art. 18/5). For this reason, the agreed matters should be clearly stated in the agreement document prepared by the mediator or the parties. Since the dispute between the parties will end with this agreement on the agreed issues, in case a lawsuit is filed later on these issues, the lawsuit will be rejected in terms of procedure due to the lack of legal benefit.

TKBB Advisory Board Member Doc. Dr. Abdurrahman Savaş

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