WHAT IS MEDIATION? WHO IS "THE MEDIATOR"?

Mediation is an alternative dispute resolution method, where the parties are brought together by a third person who helps the parties negotiate and communicate with each other. The authority to make decisions regarding the resolution remains at the opposing parties where the mediator's authority is limited to give recommendations or make decisions only regarding the process.

The Law on Mediation in Civil Disputes defines mediation as "a voluntary alternative dispute resolution method where an independent and impartial third person with an expertise training brings the parties together with the aim of helping them debate, negotiate and understand each other by applying systematical methods and thusly help the parties cultivate their own solutions by ensuring a communication process between them".

The mediator is an impartial individual who carries out the mediation process to ease the resolution of the conflict between parties. The mediator does this by recognizing and applying the mediation methods that he/she is trained for. Attorneys are allowed to be mediators provided they are registered to the mediators' registry.

Mediation is an instrumental method to the courts in accessing the judiciary. It does not preclude the access to the courts because the parties are not obligated to come to an agreement and they always have the liberty to apply to the courts.

WHY MEDIATION?

• The mediation process is voluntary in principle. The process can begin in three ways. The parties themselves can agree to apply to mediation. The judge can channelize the parties to mediation. Lastly, for certain disputes it is mandatory to apply to mediation before filing a lawsuit.
• The mediation process is confidential as long as the parties agree otherwise. The possibility of an agreement between the parties is dependent on an open and comfortable communication with each other. The principle of confidentiality serves to ease an open communication.
• Two of the most important principles of the mediation are the impartiality and the independence of the mediator. The mediator is always impartial to the parties and the dispute at hand. In other words, he/she is the third party who remains unprejudiced and treats the parties equally.
• Unlike the judicial methods, the parties hold the power to decide and determine the conditions of the agreement and to influence the process at all times. In this way, the resolution is bound to be permanent since it is created by the parties and the peaceful relations between parties are maintained.
• The parties have equal rights both in their application and in the process.
• Mediation lower and is more time- and cost-efficient in comparison with the courts.
• The parties can create their own resolution since they hold the power to decide.
• Mediation eases decreasing the number of lawsuits before courts.

WHICH CASES ARE SUITABLE FOR MEDIATION?

In many cases, it is voluntary to apply to mediation since voluntariness is a ground rule in the area of mediation. However; some fields are regulated in such a way that it is mandatory to apply to mediation before filing a lawsuit.

The Art 3. of the Code of Labor Courts numbered 7036 dictates a mandatory application to mediation before filing a lawsuit regarding actions for damages, personal actions and re-employment lawsuits arising from the law or individual or collective labor agreements. Likewise, according to the Art. 5/A of the Turkish Commercial Code (TCC) numbered 6102 it is mandatory to apply to mediation before filing one of the commercial lawsuits listed in the Art 4 of the TCC and or listed other statutes or filing a lawsuit, the subject of which is a monetary payment arising from damages or personal actions. By these regulations it is mandatory to apply to mediation before filing personal actions or actions for damages against employers, re-employment lawsuits, lawsuits arising from bills of exchange or promissory notes, unfair competition, intellectual property, publication contracts, depts on pawn, and other conflicts with banking or financing corporations.

Parties can apply to mediation in all civil law cases in which they have the total liberty to act i.e. the liberty to make a peace agreement. Examples are consumer credits, banking contracts, defective goods or services, cash sales or sales on installments, insurance or cargo contracts, and lawsuits regarding subscription, time share vacation, package tour, private hospitals, tenancy fees and related declaratory actions. Family law disputes such as partition of property, actions for damages and restitution after failed engagement or divorce, administration of estates during marriage, alimony and child support are examples of disputes that are suitable for family law mediation.