WHAT IS MEDIATION?
Mediation is an alternative dispute resolution method. What is alternative dispute resolution? Alternative dispute resolution is to refer other possible methods (such as mediation, arbitration) to resolve a dispute without going to court.
HOW IT WORKS?
Mediation is basicaly a series of meetings where parties try to find a common ground and negotiate with the asisstance of a mediator to resolve their disputes. If parties like, their attorneys can also attend the mediation process.
A mediator is an impartial and independent expert who has graduated from law faculty, has at least five years of experience in his profession, completed mediation training and is registered in Mediators’ Record of Ministry of Justice. The mediator facilitates mediation by helping parties to communicate effectively and understand each other’s needs and interests thus parties can reach a settlement. However, the mediator does not have the authority to make decisions or give advices. The mediator can only offer creative solutions, if parties cannot reach any solution.
In mediation process, parties are the only authority to make decisions. Parties can freely negotiate on the dispute, determine terms and conditions of mediation agreement. Mediator is not a decision-maker. Confidentiality is essential in mediation, all the information, documents that exposed and content of the negotiations are keep confidential, unless the parties agree otherwise.
Mediation is a fast, less expensive, collabrative alternative to conventional litigation. Litigation is a weary process that takes time, money and patience. Longer the process higher the expenses and less patient the parties are.
Mediation is much faster than litigation process, settlement can be reached within hours, days, weeks. Mediation is faster because of a few reasons. First, parties are in full control of the process which means they are free to initiate and end the negotiations anytime without any further formalities. Second, mediation enables the parties to take an active role during the negotiations and communicate directly to each other thus they can reach a mutually satisfactory settlement.
It’s cost-effective. The expenses of litigation ( such as attorney fees, legal fees, witness and expert fees etc ) does not needed in mediation. Moreover, it’s a relatively short process hence it wont take parties’ time and efforts either. The mere expense of mediation is mediator’s fee.
Mediation is a peaceful way to settle disputes. Litigation’s adversarial nature and long procedure along with the tension of right or wrong, win or lose might cause the finalization of benefical relationships. Mediation on the other hand, aims to preserve mutually favorable relationships between parties. Mediation is a voluntary and collaborative process which does not include deciding
which party is right or wrong. The focus of mediation is to reach a settlement in favor of both parties, vindication is not on the scope. Since the agreement has been structured by the parties, they tend to honour the agreement.
Confidentiality is essential in mediation. Unless otherwise agreed by the parties, all documents, information and content of meetings cannot be disclosed, even in front of the courts.
Parties are in control of every stage of procedings. Except labour disputes, mediation is voluntary. Likewise, parties are free to abandon the process anytime regardless of whether they have reached a solution. The parties also have control over the content, terms and conditions and everything about the mediation agreement.
DOES MEDIATION AGREEMENT BINDING?
Mediation agreement is binding on both parties. The agreement is structured by the parties thus parties are the authority to determine scope of the agreement. If parties settle after the mediation process a mediation agreement will be arranged and signed by the parties and the mediator.
Enforceability of the agreement can be provide by court with an endorsement.
A mediation agreement that is signed by the mediator, parties and attorneys of the parties has the power of a court order, without any further formality. If the agreement has been signed by all those three participants court approval won’t be necessary.
HOW IT ENDS?
There are several situations that concludes the mediaiton process; reaching an agreement, abandoning the process, withdraw from the process, termination of mediation and determination of unfeasibility of dispute matter for mediation.
If an agreement is reached, an agreement document will be drawn up and this document will have the power of a court decision with the signatures of the parties, their lawyers and the mediator.
If the parties can not reach an agreement at the end of the mediation activity, they are free to resort litigation about the very same matter. However, if parties reach an agreement at the end of the mediation activity, they can not pursue litigation for agreed matters.
WHICH DISPUTES ARE SUITABLE FOR MEDIATION?
Disputes of private law arising from businesses and transactions on which parties can freely –without participation of any other third party- decide on, take an action, make changes, use their own wills are suitable for mediation.
Examples of such businesses and transactions are labour law, consumer law, trade law, family law, disputes arising from contract of rent, intellectual rights and industrial rights.
However, under Law on Mediation in Legal Disputes, disputes containing domestic violence are not suitable for mediation.
Disputes in which participation of a third party (mostly a government agency, a public institution such as prosecution, land registry Office etc. ) is mandatory for a valid operation, are not suitable for mediation. Briefly, if parties’ free will is not sufficient to perform a legitimate transaction in a dispute, this very dispute can not be a subject of mediation.