Mediation in legal system to help spread reconciliation in Turkey
Barçın Yinanç - firstname.lastname@example.orgThough still in its infancy, the new judicial option of selecting mediation as opposed to direct litigation will ultimately remove burdens from the court and help spread a culture of reconciliation in Turkey, according to the head of the Istanbul Mediation Association, Dilek Yumrutaş.
Despite a growing lack of confidence in the judicial system and complaints about lengthy trials, resorting to mediation rather than going to courts will take some time. “A new institution takes a long time to be accepted in our country,” she said.
Tell us about the concept of mediation.
Mediation is an alternative way of finding a solution. It is a tool of resolution to a dispute between parties based on reconciliation that is conducted under the supervision of a neutral person.
How has mediation been introduced to Turkey?
In the framework of harmonization with European Union laws, several judicial reforms were undertaken. The efforts to introduce mediation into the Turkish judicial system go back to the early 2000s.
The legal amendment on mediation in the sphere of private law was endorsed in 2012. Following the necessary training, the first mediators started to work in November 2013.
If there had not been an accession process to the EU, would Turkish lawyers have been lobbying to have this mechanism anyway?
Mediation was introduced into the criminal justice system in Turkey in 2008. So debates started at the academic level to introduce it in the area of private law.
How are the early results?
Actually every lawyer normally first proposes reconciliation between the parties in cases which are suitable for reconciliation. Officially, mediation takes us one step further. The parties concerned reach a documented agreement under the supervision of a moderator without resorting to the courts. The document that is signed by the parties is as valid as if it was issued by the court. In our case, the issues which are suitable for mediation and those not suitable are not listed by the law, but since 2013, most of the cases that are solved via mediation are the ones between the employers and employees.
What does this tell us?
Those who are in a closer relationship, who know each other or are in an organic relation, can find easier a resolution to their disagreements. Instead of resorting to the courts – which can take years – resorting to mediation is to their advantage.
Tell us why parties should resort to mediation?
Currently, there is a huge burden on the judicial system. Due to that heavy workload, cases are taking a long time to resolve. In addition, even when they are resolved, by the time you get a result, the chances for implementation might be weak. For instance, in an employer-employee dispute, there is often an issue of missing payments. A case can take two years to resolve and when you think of the time it takes for all the other internal appeals procedure to be exhausted, we can have cases that can take three, four or even five years. You can’t know if the company or the individual has the same economic situation. In mediation, there is a limit indicated by the law to the time you have to find a solution.
In addition, mediation is about win-win philosophy, this is a process where no one loses. Parties to the dispute shake hands and go home satisfied and happy.
When you go to the court, you need to pay court fees, which is not the case with mediation. Especially in cases of big contracts, it saves a lot of money for the parties.
What is the interest level like in Turkey?
It is still very new. Our colleagues are trying to promote it. The Justice Ministry’s Department of Mediation, as well as the relevant associations, are promoting [mediation] through professional chambers and universities. In 2014, approximately 250 cases were resolved via mediation, and this represents more than 80 percent of the cases where mediation was sought.
What type of reaction do you receive when people hear it for the first time?
There is great amount of interest; but let’s not forget that we need the consent of the two sides to the dispute. Actually, we are not traditionally a belligerent society.
Yet the prevailing conviction lately is that we have become a polarized society.
That’s right, but I blame politicians for that. Look at our neighborhood relations, for instance. For years, we managed to live together in a multicultural society. But as far as the otherization that has been on the rise lately, we believe mediation will help people see that they can get a result through reconciliation. Our profession will help spread the culture of reconciliation.
Instead of going to courts, when people will resort to mediation, they will see that they can find a friendly resolution. Instead of giving up when communication has become stuck, they will see that they can unblock that knot and thus also secure the continuation of the relations.
I guess your job is not to find a solution but make the parties find their solution.
Mediators are facilitators for the parties in dispute; they guide them to finding a solution.
Sometimes for reasons of pride or stubbornness or some other reasons, they can’t see their mistakes. We enable a communication whereby they can see their mistakes, too. We use advanced communication techniques. Sometimes people take cases that can easily be resolved to the courts; this is the point where they become convinced that communication has been blocked and they cannot come up with a solution. We try to give them the message that the problem can be solved. Each side take a step toward reaching consensus. Actually when the sides decide that they want to resort to mediation, this is already a sign that they want to find a solution.
There is a lack of confidence in the Turkish legal system and a general conviction that cases take too long; does that mean that there will be a lot of interest in mediation when it becomes known to people?
Any new institution takes time to be accepted in our country. It takes time to adapt to new innovations. Multinational companies are the first ones to resort to mediation, for instance. At the beginning, I think people will not easily give up going to courts instead of resorting to mediation.
Do you think mediation can take an important amount of the burden from the courts?
It will take at least one-third of the burden once it becomes known and implemented. In contrast to certain European countries, mediation is not compulsory in Turkey. The judiciary in Turkey needs to get adapted to it as well. We think some judges will refrain from proposing mediation, thinking the system is not ready yet.
We will see a lot of progress in the next two years, but I think it will take at least five years for mediation to be accepted and implemented.
She graduated from Ankara University Law faculty. She has a post graduate degree on financial law.
She started to wark as a lawyer in Ankara.
She got several training courses on European Union law and conducted comparative studies on international legislations. She also recevied several training on criminal law and victim offender mediation.
İn İstanbul she deals with disputes on the area of international transportation and logistics; disputes arising from regulation on customs and smuggling, criminal law, copy rignts, trade law, foreign trade regulations.
She provides education and training courser to companies active in international transportation and logistics.
She is a member of risk management association.