Business Conflict Blog by Peter Phillips
A recent trip to Turkey included a delightful visit at the offices of leading Turkish law firm Hergüner Bilgen Özeke and several of its members, including H. Tolga Danisman. Tolga and I met in the most recent convening of the UIA World Mediation Forum, in Amsterdam, and it was a privilege to have a chance to get to know him and his firm better. It was also a chance to get an inside look at a rapidly developing legislative and judicial initiative in commercial mediation in this troubled and beautiful country.
Danisman, who is author of a chapter on Turkish dispute resolution in the most recent edition of The Dispute Resolution Review, explained to us that the Turkish Mediation Act on Civil Disputes was enacted in June 2012 and went into effect in June 2013. Since that time about 2,000 mediators have registered with the Ministry of Justice, and about 720 cases (mostly labor/employment) have been mediated.
The Turkish civil courts suffer from substantial backlogs; Danisman estimated that over 1.5 million matters were currently in the courts. About half of these cases transfer into the following year, so mediation was initially seen as a way to remedy judicial burdens.
But Turkish litigants are accustomed to obtaining enforceable court orders, and there is no tradition of consensual termination of litigated claims. The new Act provides for the rendering of a mediated settlement to a court judgment, but the entire approach is new and unfamiliar. The bar at first was reluctant to support mediation, but with the help of consultations with EU trade partners that resistance is waning. Nevertheless, a viable mediation center in the form seen in Europe has not yet arisen in Turkey. The Chamber of Commerce in Istanbul is focusing on the challenge, but there is still uncertainty on threshold procedural matters, such as how mediators from the approved pool will be assigned to those few cases where mediation is sought. (Individual mediators have no purchase in the market. Danisman observed that, with the procedure so unfamiliar, the parties and their counsel are simply unprepared to self-select mediators.)
There are discussions about making mediation a condition precedent to filing employment cases in court. The Ministry of Justice strongly supports the Act and campaigns on the benefits of mediation. Interestingly, the confidentiality provisions of the Turkish Act exceed the requirements of the 2008 EU ADR Directive, binding parties and counsel as well as the mediator. DRBs and other dispute mechanisms are used in large infrastructure projects. But the day-to-day commercial disputes are, so far, not affected by the new law. Moreover, most of the approved mediators are young; the older, more respected and accomplished bar have not yet participated in the pool. As a result, mediation lacks the authority or endorsement that sophisticated parties look for.
It’s a fascinating state of affairs. Turkey is enormously influential, being the sixth largest trade partner with the EU. It is facing political and military challenges at the same time it is experiencing rapidly changing cultural and religious developments. It will be interesting to see how commerce, the law, and mediation combine over the next several years.
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