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Reborn of Mediation? A Fresh New Start Emerges in Alternative Dispute Resolution

Reborn of Mediation? A Fresh New Start Emerges in Alternative Dispute Resolution

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Although mediation process entered into force about 5 years ago, due to many reasons, it has not caught up the expected effect yet, however, it seems determined to change this trend. It is possible to resort to mediation for resolving all kinds of private legal disputes arising from acts or transactions of real and legal persons.

Mediation is one of the most practical alternative dispute resolution methods providing a road map based entirely and solely on the will of the parties and carried out by impartial professionals called as mediators through amicable negotiations.

Today, the number of requests for mediation has increased considerably, and the total number of disputes that have been resolved through mediation in the past few years has reached a total of 9000. This year, only in January, the number of disputes resolved by mediation corresponds to 3000, proudly says M. Rıfat Hisarcıklıoğlu, the president of Turkish Union of Chambers and Exchange Commodities.

Mediation mainly focuses on parties' interests and intentions rather than the own discretion of the mediator, and therefore, it enables the parties to decide on procedural matters such as meeting place, dates and period of limitations. In addition, the parties act in a more comfortable and confident way on the strength of not to have an adverse award which is not approved by them at the end of the process. The confidential process of mediation is also one of its tools that makes it attractive. Statements made by the parties during the mediation process are kept strictly confidential and cannot be used as evidence against them in court if no agreement can be reached.

Besides its alternative dispute resolution nature, together with the enactment of the Draft Law on Labour Courts, mediation will become a mandatory pre-condition before applying to Labour Courts for the disputes deriving from re-employment and labour receivables.

Apparently, mediation, which is already adopted by certain sectors of the business world, will try to do its best to first establish and then strengthen its place in the future together with the enactment of the mandatory mediation in labour law. To do so, at first entire community should give it a bold chance and all institutions and mediators should use their best endeavours to keep mediation attractive and useful. 

More importantly, if Turkey wishes to establish Istanbul as a hub for Alternative Dispute Resolution, it should have been already taken into consideration that foreign companies and investors may naturally wish to resolve their disputes, especially with a Turkish company not with a Turkish mediator but through services of a mediator who is citizen of a neutral country but current legislation does not allow that and it is still mandatory to be a Turkish citizen in order to be registered as a mediator.

 

Hence, rather than simply exporting legal institutions from west, we should do more and extend our perspective and plan not only the next move but also the endgame if we really wish to play an important role in international arena.

By Ahmet Efe Kınıklıoğlu, Partner, and Ekinsu Çebi, Trainee Lawyer, Moral Law Firm

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