Mediation globally has been stood out as a preferred resolution method and used effectively for many years for disputes those such as arising from disagreements of consumers, arising from the contracts, arising in family or between neighbors. In Turkey, Mediation has recently been introduced as an alternative dispute resolution by the enactment of Law on Mediation of Civil Disputes numbered 6325 and dated 7.6.2012. Pursuant to the introduction of such Law, first certified Mediators has started their duty in 2013 and the implementation has been coordinated by the ‘’Head of Department for Mediation’’ established within the body of Directorate General for Legal Affairs of Ministry of Justice.
In a nutshell, Mediation can be defined as a method for ‘Alternative Dispute Resolution’ where both parties to the dispute can win at the end of the process. Parties develop their own solutions before the Mediator and govern the process together. In other terms, parties are completely free to start the process, continue, reach to a compromise and end the process. The process of Mediation is conducted with the active participation and consent of the parties in a complete private and confidential way and in a manner not affecting trade relations. Mediator facilitates the communication between the parties and provides systematic communication methods to enable parties to reach compromise.
One of the pre-conditions of being a Mediator in Turkey is to be a graduate from the Faculty of Law and having 5 years of experience. For this reason, the Mediator, as an impartial and independent lawyer, can manage the negotiations fairly. The Mediator does not determine what is just and unjust; but rather s/he is trying to assist the disagreement to be resolved between the parties at the fastest and least cost suitable for the equal benefit. According to the data from the Ministry of Justice, up to date, %90 of the disputes referred to Mediation have been resolved successfully. Among these disputes, majority of them have been resolved in only one day. According to this data, it is easy to presume that, Mediation will develop rapidly and effectively in Turkey in the upcoming years.
The Mediation method also comes to the forefront as one of the ways in which the burden of the Courts can be alleviated. One of the most important developments in this regard is that, Mediation has become a cause of action by 01.01.2018 in the Labor Courts for the labor cases arising from labor claims, compensation and reinstatement claims related to employee-employer relations. According to the data from the Ministry of Justice, about 500.000-700.000 files per year will be executed through Mediation and will be resolved in a very short time. As a result, the burden of the Courts will be alleviated and related disputes will be resolved in a much shorter time than a trial in courts.
Mediation also comes to the forefront in resolving the disputes in the insurance sector as an alternative and rapid method. Although it is a new concept for the sector in Turkey, corporate insurance companies have already begun to use the Mediation process in the resolution of disputes in many different areas. As it is known, the dispute files cause uncertainties for the insurance companies as arbitration and court proceedings take long time. Therefore, providing an independent and quick resolution to disputes through the method of Mediation provides important benefits for the insurance companies. It should be noted that, it is very important to select the suitable file as well as the application time in order to ensure prompt resolution of the dispute by Mediation. For example, for the disputes arising from the insurance contracts, insurance company should direct the relevant file to the Mediator before applying for arbitration or court paves the way for effective and quick resolution.
As it is well known, the main point of the disputes between the insurance companies and the victims in claims of depreciation, disability compensation and lack of support compensation, which constitute a large proportion of the applications submitted to the court and insurance arbitration, is the difference in the method of calculating the compensations mentioned within the framework of the law and the Court of Cassation decisions. However there is a possibility for the parties to meet and reach to a common understanding in a much quicker manner in these disputes and that is through Mediation.
In subrogation claims, for example, where the insurance company is in the position of the creditor, the parties can meet at a common point instantaneously and resolve the disputes about determining the amount that has to be recourse as the insurance company has the initiative to make a discount on the amount or decide for the amount to be paid in instalments, through Mediation.
Mediation is a highly effective dispute resolution method when there is a disagreement resulting from the insurance policy between the insured and the insurance companies, as well.
Professional companies worldwide have established Mediation Centres which are usually specialised in specific areas to carry out Mediation activities and have equipped the centres with meeting rooms for the parties, support services, catering services etc. In Turkey, most of the existing law firms do not always provide all the appropriate physical requirements such as meeting rooms meeting international standards with regards to confidentiality and secretarial services. Moreover, since the opportunities that can be offered by the Ministry of Justice are limited, it is obvious that there is a need for the professional Mediation facility centres that are specialised in the field of Mediation to expand. In response to this demand, specialized professional Mediation Centres meeting international standards, have been already been established in big cities.
Although Mediation in Turkey is relatively new in comparison to the examples in the World, it is becoming widespread at a great pace. Mediation has toweringly been promoted pursuant to the targets for Improvement of Alternative Dispute Resolution Methods in Civil Disputes which is included in the Strategical Plan 2015-2019 of Turkish Ministry of Justice and is contributed to a large extent to the resolution of the disputes very quickly and with a lesser cost. For this reason, it will be to the point to state that Mediation will increasingly become widespread and be used effectively in all sectors including insurance sector, in Turkey.
Suat Dolu,
*Medyan DRC
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*Medyan DRC is a subbrand of Fu Gayrimenkul Yatırım Danışmanlık A.Ş.