Türkçe
Disputes arising between the parties of a legal relationship are generally resolved by the parties through enforcement offices or courts and the parties seek their rights before these institutions. However; alternative dispute resolution methods are becoming more and more widespread due to the fact that these legal processes take extremely long time in our country and the results do not often meet the expectations of the parties. Among these dispute resolution methods, the most preferred ones are reconciliations made within the scope of Voluntary Mediation and Article 35/A of the Attorney’s Act. So, which of these two dispute resolution methods is more advantageous?
WHAT IS VOLUNTARY MEDIATION?
In accordance with Article 2/b of the Law on Mediation in Civil Disputes No. 6325; mediation is defined as “a method of dispute resolution, which is carried out voluntarily and with the participation of an independent third party who is specifically trained, by implementing systematic techniques, bringing the parties together to discuss and negotiate to solve the current dispute and conducting necessary communication between the parties to ensure that they understand each other and thus produce their own solutions and by making suggestions on solutions in case of the emergence of the parties’ failure to find solutions.”
It is mandatory for the parties to exhaust the method of mediation before carrying some legal disputes to the courts under Article 3 of the Labor Courts Law No. 7036 and Article 5/A of the Turkish Commercial Code No. 6102. However, apart from such mandatory mediation, it is also possible to resolve all legal disputes, which is not related to public order, by means of voluntary mediation.
In accordance with 6th Paragraph of Article 15 of the Mediation Law in Civil Disputes; the parties may participate in mediation negotiations in person, through their legal representatives or their lawyers. In other words, it is not obligatory for the lawyers of the parties to participate in voluntary mediation meeting or the parties to be represented by a lawyer in such meetings.
WHAT IS RECONCILIATION UNDER ARTICLE 35/A OF TURKISH ATTORNEY’S ACT?
Pursuant to Article 35/A of the Attorney’s Act No. 1136; “Attorneys may, together with their clients, invite the other party to reconcile on the disputes referred to them before the commencement of a litigation or before the hearing of the lawsuit, if the litigation is already commenced. If the other party accepts this invitation and an agreement is reached between the parties, a reconciliation minutes containing the subject of the reconciliation, the place, the date, the matters that must be mutually fulfilled by the parties, is signed by lawyers and their clients. These reconciliation minutes are regarded as a court decision under Article 38 of the Enforcement and Bankruptcy Law dated 9/6/1932 and numbered 2004.”
Unlike the voluntary mediation method; the main element of the Article 35/A reconciliation is the lawyers of the parties. Although the presence of the parties’ lawyers is not a mandatory element for voluntary mediation, the absence of lawyers in a reconciliation under article 35/A will make it impossible for the parties to benefit from the legal protections provided under that article. Therefore; in a reconciliation to be made within the scope of Article 35/A, the reconciliation minutes must be signed by the lawyers of both parties.
WHAT IS THE TIMEFRAME TO APPLY FOR VOLUNTARY MEDIATION AND RECONCILIATION UNDER ARTICLE 35/A?
In accordance with Article 13 of the Mediation Law in Civil Disputes; parties to a legal dispute can apply to mediation both before the commencement of the litigation and during the trial. Accordingly, as long as the parties of the dispute/lawsuit agree on referring to a mediator, the mediation institution can be applied at every stage of the dispute.
However, in accordance with Article 35/A of the Attorney’s Act No. 1136; the lawyers can invite the other party to reconcile with their clients before the commencement of a litigation or before the first hearing of the lawsuit, if the litigation is already commenced.
As can be seen; the period for applying to 35/A reconciliation following the commencement of the litigation procedures is limited by the mentioned article and it is regulated that the said reconciliation can only be made before the first hearing of the related case, if the litigation is already commenced. Although it is also possible for the parties to have a negotiation after the first hearing, it will not be possible to consider the reconciliation minutes to be executed as a result of such negotiations within the scope of article 35/A and accordingly, such reconciliation minutes shall not have enforcement ability in accordance with Article 38 of the Execution and Bankruptcy Law No. 2004.
IS IT POSSIBLE FOR THE RECONCILIATION AGREEMENTS EXECUTED UNDER VOLUNTARY MEDIATION AND RECONCILIATION UNDER ARTICLE 35/A TO BE DIRECTLY ENFORCED?
If the parties reach an agreement as a result of the mediation negotiations, the agreed issues are recorded by the parties under a reconciliation minutes to be signed by the parties and the mediator. However, the said document cannot have the ability to be directly enforced before the enforcement offices. In order for the relevant reconciliation minutes to become enforceable, a “enforceability statement” must be given by the competent Civil Court of Peace. Only in such way, the related reconciliation minutes may be regarded as a court decision and can be subject to enforcement proceedings like a court decision.
In accordance with 4th Paragraph of Article 18 of the Mediation Law in Civil Disputes; reconciliation minutes which are signed jointly by the mediator, the parties and their lawyers are considered as a court decision, without seeking for an “enforceability statement”.
However, it is not compulsory to apply to mediation process in order to obtain such an enforceable reconciliation minutes, since the main factor which ensures that the aforementioned mediation minutes to be regarded as a court decision, is the signatures of the parties’ lawyers. As the reconciliation minutes signed within the scope of Article 35/A reconciliation are directly regarded as a court decision under Article 38 of the Execution and Bankruptcy Law, the parties may conduct negotiations with the participation of their lawyers without referring to mediation and sign a reconciliation minute together with their lawyers as a result of such negotiations, which can be directly enforced.
WHAT ARE THE ADVANTAGES OF RECONCILIATION UNDER ARTICLE 35/A COMPARED TO VOLUNTARY MEDIATION?
As stated above; in order for the reconciliation minutes to be signed at the end of the mediation process to be enforceable, it is necessary to obtain an “enforceability statement” from the competent Civil Court of Peace. In order for these reconciliation minutes to be directly enforceable as a court decision without the need of an “enforceability statement”, such minutes must also be signed by the lawyers of the parties.
However, since the reconciliation minutes, which will be signed by the lawyers within the scope of 35/A reconciliation, will be directly enforceable as indicated by Law, there will be no need to additionally pursue a mediation process and bear the costs of such mediation procedures. The reconciliation minutes to be signed with the lawyers can be subjected to enforcement proceedings, such as a court decision, and the receivables can be collected accordingly. In this case, the only costs to be incurred by the parties will be the service fees to be paid to the lawyers of the parties, which should also be paid by the parties if the voluntary mediation process is followed by the lawyers and the reconciliation minutes are signed by the same.
In addition; since the parties’ lawyers are the ones who have the most detailed information about the scope and consequences of the dispute, the solution may be reached in more expeditious and easier manner, thereby the parties may avoid the costs of possible court proceedings and related time losses.
ERKUT LAW OFFICE
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