Introduction to Mediation Process
The ‘voluntary mediation’ has entered into our legal system with the Code of Mediation in Legal Disputes numbered 6325 (in Turkish, “Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu”). However, “mediation as a pre-condition before filing a lawsuit” will take place for the first time in our legal system before Labor Courts, as of 1 January 2018 as per the Law on Labour Courts numbered 7036 (in Turkish, “İş Mahkemeleri Kanunu”, that was published in the official gazette dated 25 October 2017). As we have informed you in our October 2017 Newsletter, the article 3 of the aforesaid Code governs mediation as a pre-condition in two types of cases ;
- Cases of indemnity and the claims of employees or employers, based on individual or collective labor contracts;
- Re-employment lawsuits (in Turkish, “İşe İade Davaları”).
On the other hand, besides these mandatory cases, mediation can always be applied voluntarily for other disputes, as well specifically for the disputes arising from
In the text you see below, you will find a template dialogue between the mediator
and the parties of a dispute that takes place at the beginning of a mediation procedure as an introduction to mediation. We hope that this dialogue helps you to have a clear picture of the mediation procedure to be followed:
“Hello, I am mediator —. You have chosen me as mediator for the solution of the matter that you have conveyed to me.
I am a registered mediator with the number — before the Mediator Registery of the Ministry of Justice. I have been conducting mediation for — years. I usually mediate on similar disputes with yours. Thank you for having confidence in impartiality and me for helping you to resolve your dispute. May I call you with your first names?
As per the information, you have given to me, you never had a chance of coming together until today. Therefore, I would like to ask you and your lawyers to introduce yourselves briefly…
You have received the necessary authorization from the person/s you represent before you come here for this mediation and you are “authorized to solve” this dispute, right?
For those of you who have not joined to a mediation process before, I would like to briefly describe my role and the process itself. People sometimes may fall into disagreements with each other and may need a mediator to solve it. There are several ways to resolve disputes, such as arbitration or litigation. However, I will serve as your mediator today. The purpose of our presence here is to reach a solution that meets your needs and interests.
As I have experienced in most of the mediation processes I have participated in, I believe that at the end of the negotiations, we will find a solution that facilitates the things for both parties. As you know, mediation is an out-of-court process. Parties often prefer this way of settlement since they can reach faster, more economical and more feasible solutions and the procedures followed to reach a solution is not open to public as in the court process. The solutions to be reached here are limited only with your imagination and with the legal rules to some extent. As you know, if you had applied to a court, this issue could have been resolved only according to the events of the past and legal rules. But now, at this table, you have the chance of planning your future over again.
I am not an arbitrator, a judge or a decision maker; you are the ones who will decide. I cannot canalize you to a way of solution, cannot give advice on how to resolve the dispute or impress any idea or solution upon you. My duty is to ease your communication and to provide the best and most appropriate environment for finding solutions. I do not have any information about this dispute except what you will tell me.
I am totally impartial and independent; I have not talked or negotiated with any of you before; I do not have any personal or material relation with any of you. (If the mediator has spoken or negotiated with any of the parties before, the reason/s of this
contact and the details of the said negotiations should be explained and clarified. Also the mediator should highlight the details of his/ her material or personal relations with any of the parties, if there is so).
Mediation is a voluntary process which means that it will be your choice to stay here and continue negotiations or to stop the same. You will have equal rights throughout the entire process. Besides, since I am not acting as your lawyer, I can not give you legal advice.
Both common and private sessions to be held throughout the entire process are confidential. However, this is not unconditioned; there are some exceptions. During the private sessions, I can only share the points you allow with the other party. Further, whatever spoken here, confidential information and submitted documents cannot be used/ presented as evidence before courts and therefore, shall not be resulted with any loss of rights.
First of all, I will ask you to describe the details of the dispute (your positions) as a starting point. After completing your explanations, I will ask you some questions to confirm that I understand the events correctly. I will talk to you all together and separately, while discussing the topics. In private sessions, our purpose is to talk to you face to face, to clarify disputed points and to help you to discover opportunities. The important thing here is to be as honest, sincere and open as possible.
In private sessions, I may have to spend more time with one of the parties and may have to ask more questions. This does not mean that I believe one of you is more rightful or I appreciate one of you more than the other. During private meetings, you will be able to give me private explanations. I assure you that I will not share what I have learned with the other party unless one of you allows me to do so. When an appropriate basis for reaching an agreement occurs, we will come together again and we will put the agreed points in writing.
I ask you to carry out the negotiations with the principal of mutual respect so that not to interrupt the other party while speaking and not to raise your voice too much. You can take notes on the paper in front of you not to forget the things you are planning to say. On the other hand, I would like to remind you that during the day, everyone will have enough time/ opportunity to speak.
During negotiations, I will give you equal time as possible and will try to speak with
you with equal periods. If you feel any hesitation on this issue, please do not avoid asking me questions. We will carry out negotiations on hourly basis (one hour). In the meantime, we can give (15) minutes breaks. It is also possible to keep these periods longer or shorter. We will take a break at 12:30 in the afternoon and we will start again at 14:00 o’clock, but I will have no objection to reach an agreement until
Yes, briefly our goal is to resolve this dispute with a good result possible. The deal
we reach here shall be binding on both parties upon we sign it. The parties may obtain an executability annotation on the document of deal from the competent court, if they wish so.
If a legal process is at stake in the future, I will not be a part of this process and I will not testify as well.
The matter of who will speak first and the duration of private sessions do not have any importance.
So let’s start.”
Our Law Firm remains at your disposal for any further clarifications you may need.