MANDATORY MEDIATION IN COMPARATIVE LAW
International Conference on ‘Mandatory Mediation in Comparative Law’ organized by Istanbul Bar Association Foreign Relations Center was held on 14.00 on Friday, March 29, 2019 within the premises of Istanbul Bar Association.
Atty. Ayşegül Tansen, Chair of Foreign Relations Center, underlined that mediation shall be implemented among equals and any field breaking this view should be left out and she added that mediation should be optional. Indicating that mediation is a hot topic that is being discussed worldwide, Tansen said that Turkey should be no exception to scrutinize mediation process. “Today, the speakers, who are the experts in the field, will address the issue from this perspective. The reason why we picked up Italy as an example is that mediation process is run by the lawyers, per se. Hesitations exist concerning mediation in family law, being in the first place, labor law and trade law in Turkey,” Tansen said.
In his welcoming remarks, President of Istanbul Bar Association Atty. Mehmet Durakoğlu indicated that there had been an effort by the Turkish government in 2011 to introduce a draft law on mediation as an alternative judicial system with the excuse of heavy burden on the judiciary in Turkey and he emphasized that they, as Istanbul Bar Association, was involved in a detailed work on the draft within the perspective of legal profession. “We have identified it clearly that any other resources to be constituted for justice would lead to a result that would affect justice, which is a reality recognized by all of us. We have made our concerns wide open about the possible effect of mediation, though the issue around its mandatory implementation has not yet been mentioned at that time, on mafia and some certain religious communities from the perspective of the prevailing conjuncture in 2011. There had been some arguments that mediation would be run by some other professions more successfully than lawyers. In order to affect the international meeting on mediation organized at a hotel and to display our reaction to this draft, we have organized a RED CARD demonstration protesting this meeting,” Durakoğlu said.
Durakoğlu went on saying that the draft on mediation was enacted in the Grand National Assembly, but as a result of the strong reaction by Istanbul Bar Association, it has been finalized that 99% of the mediators would be jurists. President Durakoğlu reminded that mediation came out as an optional institute but with the amendment in Labor Law in 2015, mediation became mandatory in disputes related to labor law. At that time while mandatory mediation in labor law was being debated, the term President of TOBB [Turkish Union of Chambers and Commodity Exchanges made a statement saying that this was done as an ideological preference, which was an unfortunate statement unveiling the actual intention underneath, Durakoğlu underlined. “Thereby, mediation is no more a negotiation between equals. As big companies have started to be involved in a prior agreement with mediation companies concerning recruitment and dismissal of employees, which leads to desperate results. This proves the rightfulness of the reasons we have put forward and our concerns about mediation in 2011,” Durakoğlu added.
Durakoğlu referred the recent visit of the Minister of Justice to Istanbul Bar Association, who stated that mediation will become mandatory in family law and Durakoğlu underlined that they are deeply concerned by this statement and this issue needs to be considered thoroughly.
Following the opening remarks, the first session of the conference was moderated by Prof. Dr. Nadi Günal, Faculty Member of Ankara University Law School.
Making an intervention in this session, President of Lecce Bar Association Roberta Altavilla said that mediation was introduced in Italy in 2010 and mandatory mediation was implemented in Italy for some time but it was brought to the Constitutional Court for its inherent drawbacks and the Constitutional Court declared its partial unconstitutionality and annuled mediation.
Mentioning that mediation was reintroduced after some time following some amendments made providing its contitutionality, Altavilla said; “Lawyers have experienced problems during that time. Their struggle and the dimension of this struggle need to be perceived”. Underlining that mediation is not mandatory in family law in Italy, President Altavilla detailed on the qualifications and educational requirements to be fulfilled in order to be a mediator in Italy laying an emphasis on the specific trainings the lawyers have to undergo and she highlighted the requirement of professional update of these trainings on a regular basis. Altavilla informed that Italian Deontological Code establishes precise rules for the lawyers who act as mediators. “Mediation has been in effect in Italy for the last 10 years. However, it is not much preferred. Litigation is much preferred and perceived as a more effective tool. If there is no reconciliation in mediation process, the parties go to court,” Altavilla stated. “Arabuluculuk İtalya’da 10 yıldır uygulanıyor. Ancak arabuluculuk pek ilgi görmüyor. Uyuşmazlıkların çözümünde daha çok devlet yargısı mahkemeler tercih ediliyor. Arabuluculukta uzlaşma sağlanamazsa mahkemeye gidiliyor” dedi.
Judge Umut İlhan Durmuşoğlu, Chair of Mediation Department, Directorate General of Legal Affairs under the Ministry of Justice, rendered information about the activities of their department. Emphasizing that there is no undergoing project concerning mediation in family law, Durmuşoğlu said that he would quit his position in the Ministry of Justice and go back to university, if there would be such a project. Durmuşoğlu said that Ministry offers only trainings on family law. “Involvement of other professions or groups, other than lawyers, in mediation institute is our red line,” Durmuşoğlu concluded.
The second session was moderated by Atty. Berna Özer, Vice-Chair of Foreign Relations Center of Istanbul Bar Association. Assoc. Prof. Anlam Altay, Faculty Member at Galatasaray University Law School rendered information about mediation in German Altay said that mediation and arbitration are both based on similar procedures and he laid an emphasis on these similar features that are independence, impartiality and expertise. Altay underlined that mediation is not mandatory in Germany.
Atty. Hasan Erdem, Chair of Labor and Social Security Law Commission of Istanbul Bar Association, said that resorting to alternative dispute resolution became mandatory in disputes relating to labor law due to the heavy burden on litigation concerning this type of disputes and litigation takes longer time. Mediation can be used if the parties are equal, otherwise the weaker party would need a legal representative, Erdem said. He also underlined that mediation should be optional, not mandatory.
Atty. Nazan Moroğlu, Vice-President of Istanbul Bar Association, said that she still agrees on the reasons why Istanbul Bar Association protested the draft law on mediation with red cards in 2011. Giving examples, Moroğlu indicated that mediation is not possible in family law. She touched upon the campaigns run against Istanbul Convention and said that this is to provide the required infrastructure to facilitate the intervention of ‘mediator’ in family law. Underlining that there is no need for the mediators from the social perspective, Moroğlu said; “We do not find it fair to put powerful and weak around the same table”.
The conference was then followed by a Question&Answer Session. At the end of the conference, the speakers were honored with a Certificate of Appreciation.