Note: This article has been directly submitted by the author for review by the MGF Editorial Team. It will undergo further revisions as part of the formal editorial process.
Author: Nazir Ikhlayel
SJD Candidate, Indiana University Maurer School of Law
I. Introduction
Mediation is one of the most important means of Alternative Dispute Resolution (ADR) for settling disputes, especially in commercial and civil matters. The importance of mediation as a method of ADR is due to its distinctness from complicated, lengthy, slow, and costly judicial procedures.
Mediation has a long history, which dates back to before law existed. Mediation procedures and mechanisms differ between countries, especially between first, second, and third world nations. The basis around which mediation revolves in most third world countries is religion and customs.
In the Middle East, Islam itself encourages people to pursue mediation, creating a mixed framework between law and Qur’an; moreover, clan leaders (Mukhtars) are at the disposal of litigants, to achieve fast and cheap resolution of disputes. This latter method of resolution does not prevent dissatisfied parties from bringing a case to State courts, but it does have strong persuasive power due to the social importance and respect associated with the social standing these leaders. If the dispute reaches State courts, the judge may offer the parties an option to resort to mediation in the early stages of litigation. The judges are, in fact, required to inform the parties of the possibility of reaching a mediation agreement in commercial and civil disputes, prior to commencing litigation procedures.
First world countries, on the other hand, have built mediation upon the social necessity of dispute resolution, organizing it through laws and regulations that define the mechanisms and methods of mediation. In first world countries, mediators are mainly lawyers, judges, or otherwise skilled professionals who incentivize the resolution of the dispute. Mediators are chosen by the parties in the dispute, thus ensuring, through their super parts character, an impartial assessment of the litigation.
For a definition that attempts to encompass the different international legal system, the International Chamber of Commerce (ICC) defined mediation as “a system of voluntary dispute resolution carried out with the participation of an impartial and independent third party, who is specially trained to convene the relevant parties by way of systemic techniques and with a view to help such parties mutually understand and reach a resolution through a process of communication.”[1]
In sum, mediation is a process of dispute resolution to which the parties of such dispute resort of their own sound will; the final resolution is delegated to an efficient third party, aiming to reach a conclusion that is satisfactory to all parties. The mediator is the natural or legal person assigned by the parties, and is distinguished by impartiality, experience, and competence. Mediation is therefore characterized by rapidity, confidentiality, flexibility, consensually, cost-efficiency, and simplicity.
In the modern era, we are witnessing groundbreaking trends, such as the increasing inflation in trade, globalization and its impact on social relations, and the resulting civil disputes. Hence, we are called upon to seek a trade-off through state-of-the-art tools that are more suitable to settle contemporary conflicts. In 2011, the United Nations General Assembly, in its resolution 65/283, called for strengthening the role of mediation in the peaceful settlement of disputes while respecting the sovereignty of states, urging all Member States to strengthen the mediation role in their regions.[2] Most countries, especially economically developed ones, have sought various means to encourage alternative dispute resolution, especially in commercial and civil matters.
In addition to its important role of settling civil conflicts, mediation plays a crucial part in settling international political conflicts, with one of the most outstanding examples of such an effort being the Palestinian-Israeli conflict, where the General Assembly appointed a mediator in Palestine in 1948.[3]
In this paper, I will analyze the mediation process in Turkey and the United States from a comparative perspective. I chose to focus on Turkey because of its prominent role in the Middle East as the leading country in implementing methods of alternative dispute resolution. I will thus highlight the main differences between these two frameworks, the various types of cases that reach the mediation stage, the percentage of overall mediated cases, and the way such cases are dealt with. The underlying goals of this comparative research are assessing whether mediation is necessary and how it compares to other methods of alternative dispute resolution.
II. The Turkish’s Mediation Framework
Mediation in Turkey was initially sourced from the Islamic religion and societal tradition. In fact, as aforementioned, the Islamic religion urges mediation in order to settle conflicts. Currently, mediation is expressly regulated in the Turkish legal system through Civil Mediation Law No. 6325 and 7155, Labor Law No. 7036, and some administrative decisions of the Turkish Constitutional Court.
It is to be noted that, firstly, Law No. 6325[4] is the most prominent provision since the introduction of the Institute of Mediation in the Turkish legal system. For this reason, in Article 28, this law established the creation of a specific Department within the body of the Directorate general, and of a Board of Mediation within the ministry, to perform the duties that were set forth by Law No. 6325’s provisions. The Department and Board have different duties, listed under Article 30 and 32, respectively. The Department mainly focuses on ensuring that mediation services are carried out regularly and efficiently, monitoring country-wide mediation practices, conducting examinations and research on laws and regulatory acts, and making recommendations to the Directorate General. On the other hand, the Board focuses on determining the basic principles concerning mediation services and codes, establishing the basic principles and standards concerning mediation training and supervision, and making recommendations to increase the efficiency of the activities to be carried out by the Department.
Under its Article 1, Law No. 6325 is applicable in the resolution of civil disputes related to mediation, more specifically those of a private nature. In Article 2, this law provides that mediation is an alternative method for settling commercial and civil disputes; it is carried out through a neutral, independent third party, quickly and confidentially at the request of the parties to reach a solution satisfactory to all.[5] Under this Article, the mediator is identified as a natural person who acts as a mediator and is included in the Ministry of Justice register of mediators. Law No. 6325, in its Article 20,[6] also lists a series of conditions for the mediators, namely being a Turkish citizen, having a bachelor’s degree in Law and at least 5 years of seniority in the profession, having “full legal capacity,” having a clean criminal record, having completed the training session on mediation, and having passed the written and oral exam set by the Ministry of Justice.[7] Under Article 4, all parties and mediators must maintain the confidentiality of all information, documents, procedures, and everything related to the mediation. Under Article 13,[8] the parties may agree to resort to a mediator before filing the lawsuit or during its course. The court may also enlighten and encourage the parties to resort to a mediator. Notwithstanding this possibility to suggest mediation from the court, the most important provision of this law, for the scope of our analysis, is Article 3. It states that the parties, which enjoy equal rights throughout the mediation process, are free to resort to a mediator, to continue or finalize the process, or to renounce such process. Hence, there is no mandatory requirement to resort to mediation under this law.
Labor Law No. 7036[9] was promulgated subsequently to Mediation Law No. 6325, which provides mandatory mediation as a prerequisite for commercial and employment disputes. Interestingly, this provision is targeted for labor courts, but deals with mediation because most mediation cases at the time were related to labor law. Following its passage, in cases of compensation claims raised by employees or employers based on individual or collective labor agreements and for reinstatement lawsuits, it became mandatory for parties to submit their case to a mediator before filing a lawsuit. However, mandatory mediation does not cover or apply to damages that may arise from occupational illnesses and work-related accidents. In mandatory mediation cases, the mediator will be appointed either by the mediation office from a prepared list of mediators, by the commissions to be formed, or by the parties themselves. The mediator must conclude the negotiations within three weeks, and this period may be extended for one week by the mediator under particular circumstances. If the parties reach a settlement, the mediation fee will be paid equally, unless otherwise agreed. Additionally, for disputes in relation to General Health Insurance Law and other social security legislation, the law has now made it mandatory for parties to apply to the Social Security Institution before the initiation of any legal case.
What sparked confusion was that both Law No. 6325, which did not require mandatory mediation, and Law No. 7036, which instead provided that requirement, were coexisting in the same legal framework. To resolve the conflict among these provisions, the Turkish Constitutional Court clarified that all litigants in labor cases are subject to mandatory mediation to resolve the dispute, also pointing out the different competences of each legal entity (e.g., labor courts, insurance courts). This policy choice is in line with the strong need to unburden the judicial system through a faster dispute resolution process.
Another important actor in this already complex framework is Law No. 7155.[10]
This law was introduced in January 2019, amending the Turkish Commercial Code (TCC) No. 6102 and Law No. 6325. Adding Article 5/A to the TCC, this law provides mandatory mediation as a prerequisite for commercial disputes regulated under Article 4 of the TCC and other legislation concerning monetary receivables and compensation claims before pursuing the dispute via the Turkish court system. Article 4 lists which lawsuits are to be considered commercial, namely issues regulated under the TCC, certain articles of the Turkish Code of Obligations, relevant articles of the Turkish Civil Code regarding pawn brokers, certain regulations under intellectual property legislation, and legislation concerning banks and other financial institutions. In addition, mediation is mandatory for issues and lawsuits that are not expressly stated under Article 4 of the TCC but that involve parties that are merchants on both sides of the dispute and disputes concerning the commercial enterprises of said parties. The scope of mandatory mediation under this new Article is still unclear. In fact, it is debated whether it can only be applied to lawsuits regarding receivables and compensation claims, or to other actions concerning monetary disputes as well (e.g., negative declaratory actions and recognition and enforcement of foreign court judgments).[11]
In 2018, the head of the Mediation Department of the Ministry of Justice of Turkey stated that 30,828 mediation files had been submitted, and an agreement was reached for 70% of the total applications.[12] At the end of the same year, the Turkish Ministry of Justice reported that that number increased to 297,147, among which 67% were settled through mediation.[13] According to the Istanbul Chamber of Commerce, parties who turn to their center to mediate trade and financial disputes are able to reach a result within 6 weeks of their review, as per statistics. Regarding the mediation fees, the Istanbul Chamber of Commerce said that their determination happens in accordance with the content of the case, according to Law No. 6325, including mandatory fees to the “Arbitration and Mediation Center of Istanbul Chamber of Commerce” of 300 TL.[14]
Simply put, as previously indicated, Article 3 of Law No. 6325 stipulates that “parties are free to resort to mediation.” However, Article 20 of Law No. 7036 amended Article 3, making mediation mandatory in some cases. Law No. 6325 and its Article 3, establishing the importance of the parties’ willingness to resort to mediation, were also amended by Law 7155. In fact, Article 23 of Law No. 7155[15] provides that court petitions for commercial payment claims should be accompanied by a certified copy of the minutes of mediation to demonstrate that mediation proceedings were completed without reaching a settlement. If mediation minutes are not provided or it is understood that a claim was purported to be brought without first exhausting applicable mediation proceedings, the court will be required to dismiss the claim on procedural grounds, without any review of merits.[16] On top of that, it is to be noted that Law No 7155 also added Article 18/A to Law No. 6325, confirming that mandatory mediation requirements will not apply in cases where the parties have agreed to submit their disputes to arbitration.
Baydar and Cetinkaya says:
“In the event that the parties reach an agreement, a document of understanding will be signed by the parties and the mediator in accordance with article 18 of the Mediation Law. The parties can request an annotation regarding the enforceability of the document of understanding from the competent civil court of peace. As per article 18/4 of the Mediation Law, the document of understanding that is signed by the mediator and the parties along with the parties’ attorneys does not require an annotation of enforceability. The document of understanding that is signed by the parties with an enforceability annotation or signed by the mediator and the parties along with their attorneys will be deemed to serve as a court judgment and can be enforced in the same manner. Consequently, the parties will not be able to file a lawsuit on the same subject.”[17]
All these reforms are targeted towards the crucial issue of the excessive length of trials, especially those that protract prohibitively in commercial courts, with the ultimate objective being to provide meaningful legal remedies and foster trust in the legal system. Turkey is seeking updates in the legal system related to civil cases to keep pace with the judicial development taking place in the European Union, and Turkey’s desire to join the EU is one of the most important reasons. The development and economic inflation that has occurred since 1990 has pushed the Turkish legislator to create legal mechanisms for dispute resolution beyond the judiciary, mainly to reduce the burden on the judiciary, speed up procedures, and reduce costs. Therefore, the Turkish Chamber of Commerce and the Ministry of Justice sought to issue regulations governing mediation procedures, successfully providing both a time and cost-efficient method of ADR and reducing courts’ workload.
III. The United States’ Mediation Framework
Social and labor unrest in the United States of America played a pivotal role in the development of mediation as a basic tool for settling disputes in the late nineteenth century and early twentieth century. As workers demanded higher salaries through strikes and companies strongly refused, the production sector was disrupted. As a result, the Commissioners of Conciliation were the first official mediators appointed by the Secretary of Labor in 1913. After that, the US Congress passed the National Labor Relations Act[18]. After displaying its shapeshifting potential through various legal eras, mediation became very common in civil, commercial, and family disputes. The legal framework around mediation was built based on this social urge to submit this ever-growing phenomenon to an ordinate structure. Hence, as noted above, the motive behind the platform around which mediation was built in the U.S. is diametrically opposed to the Middle Eastern models, which rely on a religious basis (i.e., Islamic Sharia).
In one of the most prominent manuals on the United States framework, Moore defines mediation as “a conflict resolution process in which a mutually acceptable third party, who has no authority to make binding decision for disputants, intervenes in a conflict or dispute to assist involved parties to improve their relationship, enhance communication, and use effective problem-solving and negotiation procedures to reach voluntary and mutually acceptable understandings or agreements on contested issues.”[19]
In the United States, mediation rules differ from state to state in the following ways:
i. Whether resorting to mediation is voluntary or not:
- Mediation is completely voluntary in some states. Parties are required to consent to the process and to how the mediation can help their case be settled (e.g., Alabama, Middle and South Dakota, Connecticut, Southern Georgia, Central Illinois, Southern Indiana, Iowa, Maine, Maryland, Massachusetts, Western Michigan, Nebraska, New Hampshire, Rhode Island, Western Washington, and Eastern Wisconsin).[20]
- The court may order the referral of the case to mediation, and the court may refer the case to mediation or any other ADR means based on the parties’ request. The parties have the right to file an objection against the court’s order (e.g., Northern Alabama, Southern Alabama, Alaska, Arizona, Colombia, Middle Florida, Northern Florida, Southern Florida, Guam, Idaho, Southern Illinois, Northern Indiana, Kansas, Western and Eastern Kentucky, Middle Louisiana, Western and Eastern Louisiana, Eastern Missouri, Montana, Nebraska, New Hampshire, New Jersey, Northern and Eastern New York, Northern and Southern Ohio, Western Oklahoma, Middle and Western Pennsylvania, Puerto Rico, Middle and Eastern Tennessee, Eastern and Western Texas, Uta, Northern and Southern Texas, Virginia Islands, Western Virginia, Eastern Washington, West Virginia, and Wyoming,)[21]
- The parties must consider using the ADR means except the following: appeals from rulings of administrative agencies, Social Security cases, bankruptcy appeals, habeas corpus, extraordinary writs, and prisoner civil right cases (e.g., Western and Eastern Arkansas, Colorado, Middle Georgia, Northern Georgia, Maryland, Eastern and Western Michigan, Mariana Islands, and Western Wisconsin). The exceptions above apply only to Western and Eastern Arkansas).[22]
- Usually, the cases are referred to the ADR program automatically or upon the request of one of the parties. There are exceptions, which have been mentioned in sections 5 and 6 of the General District Court of California rules, Eastern District of California rule. R271 and Southern District of California Rule ADR L.R (e.g., Northern, Eastern, and Southern California, Southern and Western New York, Eastern and Northern Oklahoma, Western Tennessee, and Vermont).[23]
- Settlement conferences are compulsory in civil cases, and the court can also refer the case to ADR, but only if the parties have agreed to do so (e.g., Minnesota, New Mexico, Oregon, and Rhode Island). Mediation is mandatory in some states (e.g., Western Missouri, Northern and Southern Mississippi, Nevada, and Eastern Virginia). In some cases, the magistrates’ judges in civil matters are required to use ADR to settle the disputes through trial (e.g., Delaware and Hawaii).[24]
ii. Mediators’ qualifications or the mediation service provider:
- The qualifications of the person in charge of the mediation process to settle a dispute from state to state differ, according to the different laws governing the mediation and the means of ADR. Some states require a judicial officer to carry out the mediation process (e.g., Middle Alabama, Alaska, Central California, Southern California, Colorado, Delaware, Guam, Southern Illinois, Southern Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Eastern Michigan, New Hampshire, New Mexico, North Dakota, Oregon, Pennsylvania, Virginia, Eastern Washington, and Wyoming.)[25]
- There are many states which allow private neutral or voluntary dispute resolution programs (VDRP) for the mediation process (e.g., Northern Alabama, Southern Alabama, Alaska, Northern California, Eastern California, Columbia, Southern Florida, northern Indiana, Southern Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Missouri, Montana, New Jersey, Southern New York, Ohio, Oregon, Virginia, Eastern Washington, and Wyoming).
- Also, some states require a magistrate judge, judge, or retired judge to handle the mediation process (e.g., Southern Alabama, Arizona, Arkansas, Central California, Northern California, Northern Gorgia, Hawaii, Idaho, Central Illinois, Maryland, Minnesota, Oklahoma, Puerto Rico, Nevada, South Dakota, Eastern Wisconsin.) or a mediator Court certified (e.g., Columbia, Middle Florida, Northern Florida, Southern Florida Southern Indiana, Western Michigan, South Carolina, and Eastern Texas).
- Some states merely require a qualified person, Special Master, panel mediator, or private organization to handle the mediation process (e.g., Connecticut, Columbia, Southern Gorgia, Louisiana, Mississippi, New Jersey, Northern New York, Southern and Western New York, North Carolina, Ohio, Oregon, Western Pennsylvania, Eastern Tennessee, Northern and Southern Texas, Western Texas, Utah, and Vermont). Nebraska and Western Washington require an attorney to serve as private mediators).[26]
iii. Confidentiality: All the states note, in their legal ADR regulations, that all communications, documents, and reports made in connection with the mediation conference are private, privileged, and confidential. Information within these may not be disclosed without the knowledge of the mediation parties.[27]
Among all the states, Indiana is a very interesting example, which I chose to focus on closely. More specifically, the Ind. ADR R. 2.6 caught my eye because of the discretion it gives the Court in determining the hourly rate and the division of the parties’ costs when a neutral mediator is involved.
Indiana Rules of Court Rules for Alternative Dispute Resolution define mediation in R.2.1, as “the confidential process by which a neutral, acting as a mediator, selected by the parties or appointed by the court, assists the litigants in reaching a mutually acceptable agreement…etc.”[28]
The ADR process in Southern Indiana is voluntary and is considered separate from settlement conferences and mediation conducted by judicial officers. In Southern Indiana, the Court may order mediation or ENE (i.e., Early Neutral Evaluation, an alternative type of ADR) in any civil case. Also, the parties must confer and advise on whether they will utilize a voluntary ADR process.
As far as mediation services providers go, the Court maintains a list of neutral individual’s available for mediation or ENE in the Northern District.[29] Local rules for the Southern District of Indiana[30] specify that a mediator can be sought from the Indiana Mediator registry or a private mediator can be chosen by agreement. This District’s rules also provide that if the parties cannot agree, a judicial officer will assist with the selection.
If any attorney, or party representative fails to comply with the rules, the Court may impose sanctions against them under Ind. ADR R. 2.10[31]. Under the Local Rules of the Southern District, these sanctions can be imposed against any person who fails to do so.
Lastly, under Ind. ADR. R. 2.11,[32] mediation shall be regarded as settlement negotiations governed by Ind. Evidence Rule 408, and the confidentiality requirement may not be waived by the parties. In the Southern District Local Rules, written or oral communications made during the course of ADR proceedings are confidential and treated as settlement negotiations for evidentiary purposes.
In both Turkish and American law, we note how mediation is less formal and lacks the mandatory character of arbitration and the customary judiciary trial. In fact, even if the parties agree on a specific mediator and attend the mediation sessions, they are not obligated to agree to any proposed solution and retain the right to leave the mediation procedures before a conclusion is reached, by following specific procedures that differ among states and from one legal system to another. The mediation procedures begin by appointing a mediator by the parties’ approval. Then, the mediator based on his skills, manages the dispute so as to reach a satisfactory solution for the parties, according to the law and legal system.
Unlike Turkey, in the U.S., there are federal laws governing and regulating mediation at the national level, i.e. The Administrative Dispute Resolution Act of 1996 Pub. Law 104-320),[33] which generally regulates ADR means, as well as 29 U.S. Code § 172, i.e., the Federal Mediation and Conciliation Service,[34] which refers to mediation and the recurrent tasks in general, without specifying the mechanisms of how mediation works. The primary role in organizing and governing the mediation process is assigned to state laws, as each state has internal laws and regulations governing mediation as one means of ADR. In Indiana, the Indiana Code (IC 4-21.5-3.5)[35] regulates mediation in a precise and detailed manner. In addition, the Indiana Rules of Court Rules for Alternative Dispute Resolution and S.D.Ind. Local ADR Rule regulate the role of mediator and dialogue management to reach a satisfactory solution. In Turkey, as I mentioned earlier, there is a unified national law that regulates mediation at the federal level.
According to Indiana Rules of Court in ADR (R. 2.2), a dispute can be referred to a mediator upon request of the parties to the dispute, or by the court, after the expiration of the period permitted by law. As such, the Indiana Code § 3 states, “Before a proceeding is initiated, an agency and a person who may be the subject of an agency action may agree to use mediation to resolve a dispute.” The aforementioned rule also stipulates that the parties have the right to object to the court’s decision in the event of a referral to mediation to settle the dispute. ADR Rule 2.2 is very similar to the laws governing mediation in Turkey, where the parties or the court, upon the request of the parties, refer the case to mediation, with a fundamental difference, which is that the Turkish court may refuse to consider the lawsuit if the lawsuit will go through mediation, before claiming that to the judiciary, based on the mediation law. ADR Rule 2.3 states that those wishing to act as a mediator must register in the Indiana Supreme Court Commission for Continuing Legal Education (hereinafter “Commission”).[36] The registration shall occur with the broker choosing the field in which he/she wants to work specifically after he/she meets the basic requirements and pays the fees specified in accordance with the law. ADR Rule 2.3 is very close to the Turkish rule, where it states that every mediator must register in the Ministry of Justice to get his license and pay the fees as a requirement. At the same time, he/ or she should abide by the instructions of the Turkish Chamber of Commerce. The Indiana Code § 6.A refers to the mediator selection process and the person in charge of conducting the mediation, stating that “If a proceeding is conducted by mediation, the administrative law judge assigned to the proceeding shall within fifteen (15) days after the date of the order for mediation make available to the parties, at no cost, a mediator who is qualified under section 8 of this chapter, or the parties may elect to use, at their own cost.”[37] The Turkish rules don’t require anyone who wants to be a mediator to determine or choose the fields he/she wants to practice, such as civil, commercial, insurance, family, etc.
The qualifications of a mediator in the State of Indiana are listed under Rule 2.5,[38] and the hearing court must agree to the case if the parties agree to go to mediation to settle the dispute. Unlike domestic relations cases, for civil cases, Rule 2.5 requires that a registered mediator must be an attorney in good standing with the Supreme Court of Indiana. The rule also stipulates that an individual wishing to register to be a mediator must train for forty hours in the mediation field prior to registering, in addition to another period of time instead of the forty hours mentioned in this rule. Indiana Code (4-21.5-3) in § 8.A notes that “a person who applies to be a mediator under this chapter must be qualified as a mediator under Rule 2.5 of the Indiana Supreme Court Rules for Alternative Dispute Resolution.”[39] Indiana Rules of Court ADR Rule 2.5 is more accurate than Turkish law in determining the qualifications of a mediator and the conditions that must be met by a person who wants to become a mediator. On the other hand, Turkish law does not stipulate that the mediator in civil cases be a lawyer, as opposed to what is stated in ADR Rule 2.5.[40]
Usually, the disputing parties in family cases in the state of Indiana go to mediation before any final hearing of the case. Unlike the U.S. mediation process, Turkish law mandates parties of dispute to seek mediation in specific civil cases, commercial payment claims, and employee claims, generally before resorting to the court. On the other hand, in Indiana law, the parties are not obligated to go to mediation before going to court, except in some cases which vary from one district to another. There is a high percentage of family disputes that are referred to mediation in Indiana due to the family relationship nature, in addition to other commercial and civil disputes.
The main principles regarding mediation in the United States of America, Indiana, and Turkey are largely the same, as ADR Rules 2.7 to 2.11[41] refer to advisement of participants, mediation conferences, confidential statement of the case, impartiality, conflicts of interest, quality of the process, fees, and that parties have a right to receive the final report of the mediation process. Confidentiality is one of the most important principles of mediation, so ADR Rule 2.11 refers to it in detail, by saying that all mediation sessions are confidential and closed, and only parties are allowed to see the mediation process. It is never permissible to waive confidentiality.[42] The Turkish mediation law focused on the importance of confidentiality during mediation sessions, and holds that it should be closed to non-parties, and emphasizes not to leak any documents that were used as evidence or any official statements in mediation sessions.
Unlike the mediation code in Turkey, the ADR rules and the Indiana Code adopted by Indiana explain precisely the mediation habits and the role of the mediator as well. As the mediator chosen by the dispute parties, he or she performs the required role as a mediator, where he prepares the mediation agreement, contacts the parties, determines the cost of mediation, exchanges documents and facts, determines the basis for the mediation process and its location, determines common interests, proposes alternative and backup solutions as well as acceptable settlement options before the parties. In the event that the dispute is settled based on the aforementioned process, the agreement will be signed at the end. Indiana Code (IC) §16 provides for the mediator’s duties towards the parties and the laws governing mediation, stipulating that among the mediator’s duties, there is the duty to inform the parties of the expected cost, inform the parties that the mediator does not represent any of the parties, describe and define the mediation process and mechanisms, clearly disclose any relationship with the parties, disclose to the parties any documents that were disclosed during the mediation process, inform the parties that the written settlement agreement is evidence of the settlement of the dispute, inform the parties of the date and place of the mediation 10 days in advance unless the parties agree on a shorter time, and finally inform the parties to inform all persons who may facilitate their presence in the mediation settlement.[43] In addition, §§ 17, 18, and 19 in IC discuss confidentiality, mediation process, and the termination of the mediation. Turkish law avoids going into the details of mediation sessions and has left that to specialized programs for preparing mediators in the Turkish Chamber of Commerce.
IV. Conclusion
In the end, there is no doubt about the importance of mediation as an alternative way of settling disputes, whether it is commercial, family, civil, or labor. Mediation is one of the most important means of settling disputes, especially commercial and civil. Mediation is important because it is far from being a complicated, lengthy, slow, and costly judicial procedure. One of the most important aspects of mediation, in general, is confidentiality and impartiality in any law and in any place. Generational succession, economic and industrial development, and population inflation have played a fundamental role in developing the concept of mediation across generations. As mentioned earlier, the most important difference between Turkish law and the rules governing mediation in the United States of America, especially in Indiana, is the nature of the cases in which mediation is required, as well as the types of cases required to resort to mediation before filing a lawsuit before the court. Whereas Turkish law obliges all parties to resort to mediation in labor issues before filing a lawsuit. As for Indiana law, the mandatory nature of mediation, as well as the mechanisms to go to mediation, in accordance with the applicable local IDR rules are left behind. Despite the agreement of both systems regarding the two most important elements of mediation, which are impartiality and confidentiality, I believe that the mediation mechanism in the United States is comparatively better than it is in Turkey in terms of regulating and legalizing the procedures related to mediation.
[1] ICC – International Chamber of Commerce, Mediation (2021), https://iccwbo.org/dispute-resolution-services/mediation (last visited Mar 18, 2021).
[2] United Nations activities in support of mediation – Report of the Secretary-General (A/72/115) [EN/AR] – World, RELIEFWEB, https://reliefweb.int/report/world/united-nations-activities-support-mediation-report-secretary-general-a72115-enar (last visited Mar 18, 2021).
[3] Encyclopedia Britannica, Mediation in international relations, https://www.britannica.com/topic/mediation-international-relations (last visited Mar 18, 2021).
[4] Turkish law on mediation civil disputes, Law No.6325 Official Gazette (Resmi Gazete = R.G.), 22 Jun 2012 No. 28331, enacted: 7 Jun 2012
[5] Turkish law on mediation civil disputes, Law No.6325 Official Gazette (Resmi Gazete = R.G.) (Article, 2), 22 Jun 2012 No. 28331, enacted: 7 Jun 2012
[6] Id. (Article 20)
[7] Baris Can Polat, Mediation; The Long-Awaited Turkish Mediation Law, Mondaq (03 October 2013), https://www.mondaq.com/turkey/arbitration-dispute-resolution/267746/mediation-the-long-awaited-turkish-mediation-law.
[8] Turkish law on mediation civil disputes, Law No.6325 Official Gazette (Resmi Gazete = R.G.) (Article, 3), 22 Jun 2012 No. 28331, enacted: 7 Jun 2012
[9] Feyza Erdal, Information on The Law on Turkish Labor Courts Numbered 7036 (12019), https://www.mondaq.com/turkey/employment-litigation-tribunals/784748/information-on-the-law-on-turkish-labor-courts-numbered-7036 (last visited Mar 18, 2021).
[10]Murat Soylu, Can Ozilhan, Duru İyem, Can Yılmaz, Mandatory Mediation for Commercial Disputes (2019), https://www.mondaq.com/turkey/arbitration-dispute-resolution/770986/mandatory-mediation-for-commercial-disputes (last visited Mar 18, 2021).
[11] Id.
[12] Baris Can Polat, supra note 7.
[13] Murat Soylu, Can Ozilhan, Duru İyem, Can Yılmaz, supra note 10.
[14] Turk press, Istanbul Chamber of Commerce provides “commercial mediation” services in cases of financial disputes, (25 February 2019) https://www.turkpress.co/node/58224 (Last visit 15 April 202).
[15] Orgulu Arseven, Turkey Adopts Mandatory Mediation for Monetary Claims Arising from IP Law, Moroğlu Arseven (2019), https://www.morogluarseven.com/news-and-publications/turkey-adopts-mandatory-mediation-for-monetary-claims-arising-from-ip-law/ (last visited Mar 18, 2021).
[16]Id.
[17] Orcun Cetinkaya, Burak Baydar, mandatory mediation for commercial disputes (2019), https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=2C8DFEC0-B1F4-4D25-95E2-2B8E56073D3F (last visited Mar 18, 2021).
[18] Saul, Judith, The Legal and Cultural Roots of Mediation in the United States (August 6, 2012). Opinion Juris in Comparatione, No. 1/2012, Paper No. 8, https://ssrn.com/abstract=2125440 (last visited 15 March 2021)
[19] Moore Christopher, The Mediation Process “Practical Strategies for Resolving Conflict” (page 8) (fourth edition 2014)
[20] Melissa Leibman, ADR in the Federal District Courts –District-by-District Summaries 26 (revised March 2016) https://www.justice.gov/archives/olp/file/827536/download (Last visited March 15, 2021).
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Ind. R. Alter. Disp. Res. 2.6 (2005)
[29] Melissa Leibman, ADR in the Federal District Courts –District-by-District Summaries 26 (revised March 2016) https://www.justice.gov/archives/olp/file/827536/download (Last visited March 15, 2021).
[30] S.D.Ind. Local A.D.R. Rule 1.1 (2003)
[31] Ind. R. Alter. Disp. Res. 2.10 (2005)
[32] Ind. R. Alter. Disp. Res. 2.11 (2005)
[33] Public Law 104 – 320 (1996)
[34] 29 U.S. Code § 172 (2011)
[35] IN Code § 4-21.5-3 (2017)
[36] Ind. R. Alter. Disp. Res. 2.3 (2005)
[37] IN Code § 4-21.5-3.5-6 (A). (2017)
[38] Ind. R. Alter. Disp. Res. 2.5 (2005)
[39] IN Code § 4-21.5-3.5.8 (a) (2017)
[40] Id.
[41] Ind. R. Alter. Disp. Res. 2.1 (2005)
[42] Ind. R. Alter. Disp. Res. 2.11 (2005)
[43] IN Code 4-21.5-3.5-16 (2017)
