The Turkish Law on Mediation of 2012 has been successful in raising awareness of mediation, and the use of mediation has steadily increased in Turkey during recent years. Despite the strong resistance of Bar Associations and labour unions’ anti-campaigns in the last ten years, today’s high settlement rates demonstrate that the public is interested in resolving disputes creatively and economically, in a timely manner, and in an amicable way. These developments clearly show that mediation as an alternative form of dispute resolution is not a passing phase. Instead, mediation has become integral to the country’s legal system.
Following the success of mandatory mediation as a condition precedent to judicial proceedings in labour disputes¹, the application of mandatory mediation was extended to commercial disputes beginning on January 1, 2019. If a claimant does not apply to mediation before filing an action, his action will be dismissed without prejudice by the court. The claimant is now also obliged to add final records of mediation to his or her petition if the parties are not able to reach a settlement. There are four key aspects related to commercial mediation, which are specific to Turkey. These are: (a) mandatory first meeting with a mediator as a condition precedent to judicial proceedings; (b) limited duration of mediation; (c) provisions with regard to the mediators’ fees; and (d) the possibility to transform the mediation settlement into an enforceable document. While all of these have contributed to the success of commercial mediation in the country, certain issues still remain.
Between January and August 2019, mandatory mediation was initiated in 88,876 commercial disputes, 37,073 of which have resulted in a settlement. While this statistical data was recorded when mediation was still ongoing in some of the cases, the success rate of mediations that have already closed is equal to 57 percent, leaving 43 percent of the finished mediations without a settlement. From 2018-2019, the voluntary use of the mediation process has also tripled in comparison to 2013-2017. The unexpectedly high settlement rates discussed above have created a shift in the perception of mediation. According to the Ministry’s recent statistics, there are 10,287 registered mediators as of August 2019, while approximately 40,000 lawyers have completed 84 hours of mediation training programs and are now waiting to complete the aptitude test in order to be registered as mediators.
To conclude, the Turkish mediation market is developing quickly while at the same time creating its own model and practice. However, in order to become a global player, following international standards is also key to the success of mediation in Turkey in the long term. Although Turkey signed the Singapore Convention on Mediation on August 7, 2019, all mediation service and mediation training providers are local, and cross-border mediation experience is still limited. Following these developments, increasing the quality of mediators, mediation ethics, monitoring and evaluating current mediation practices, increasing cooperation with international organizations, adopting mediation laws and regulations, and developing cross-border practices are all next steps for the future of mediation.
By Aşiyan Süleymanoğlu, Senior Fellow-Turkey, Weinstein International Foundation
¹In the first year of the application of mandatory mediation, 562,041 labour cases were mediated, and 68 percent of them were settled. The number of voluntary mediation applications reached 124,278, with a 94 percent settlement rate in the last six years.