The Review of Mandatory Mediation in Terms of the Right of Access to Justice
Sibel ÖzelMediation as a method of ADR (alternative dispute resolutions) is a process whereby parties attempt to solve their disputes with the assistant of a third person. Therefore, it seems strange to call something “mandatory mediation” because it requires for parties’ voluntary participation during the process. However, it is argued that there is a distinction between voluntariness into and within the process. Thus, that coercing parties to attempt mediation is not necessarily tantamount to enforcing settlement. Mandatory mediation may appear as a condition for the admissibility of an action before courts. The second type of mandatory mediation appears as court-referred mediation that gives judges power to refer parties’ mediation regardless of their consent. The third is described as quasi-compulsory because it is indirectly compelled through adverse cost orders if not undertaken prior to commercing proceeding. This paper reviews mandatory mediation in terms of access to justice which is constituted by the principle of judicial protection enshrined in Art 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Zorunlu Arabuluculuğun Adalete Erişim Hakkı Çerçevesinde İrdelenmesi
Sibel ÖzelAlternatif uyuşmazlık çözüm yöntemi (ADR) olan arabuluculuk tarafların üçüncü bir kişinin yardımıyla uyuşmazlıklarını çözümlemeye çalıştıkları bir süreç anlamına gelmektedir. Bu itibarla zorunlu arabuluculuk kavramı arabuluculukla bağdaşmaz görünmektedir; zira tarafların prosedüre katılımlarının gönüllü olması zorunludur. Ancak sürece başlamak ile süreçte kalmak arasında fark olduğu ileri sürülmüştür. Buna göre tarafları arabuluculuğa zorlamak onları sulh olmaya zorlamak anlamına gelmemektedir. Zorunlu arabuluculuk mahkemede dava açmak için gerekli bir şart olarak yani dava şartı arabuluculuk olarak gerçekleşebilir. İkinci görünüm şekli, mahkemenin yönlendirmesiyle gerçekleşen zorunlu arabuluculuktur. Burada hâkime tarafların rızasına bakmadan onları arabuluculuğa gönderme yetkisi verilmiştir. Üçüncü olarak zorunlu-benzeri olarak ifade edilebilecek bir yöntemle arabuluculuğa zorlama sağlanabilir; zira bu yöntemde mahkeme öncesinde arabuluculuğa gitmeyen taraf yargılama giderlerini ödemeye mahkûm edilir. Bu makalede Avrupa İnsan Hakları ve Temel Özgürlükler Sözleşmesi m. 6 ve 13’de anlamını bulan yargısal koruma prensibini bünyesinde barındıran adalete erişim hakkı çerçevesinde zorunlu arabuluculuk irdelenmektedir.
Mandatory mediation seems to be stranged at first sight since mediation as a method of alternative dispute resolution covers a process whereby parties try to solve their conflicts with the assistant of a third person. In this respect the voluntary participation of the parties is essential for the process. However, it has been seen that voluntary mediation was not preferred as an ADR in many countries, including Italy. Therefore, mandatory mediation has been adopted by law in countries so as to reduce the burden of courts.
Mandatory mediation draws attention to the distinction between the starting of the process and the conclusion of the process by settlement. Hence, it is acceptable to force parties to undertake a mediation process, provided that they are not compelled to stay in the process and solve their dispute. One of the main objectives of mandatory mediation that is adopted by law is to reduce the burden of courts and the cost of litigation. However, it achieves its goal only if the parties reach a settlement at the end of the process. Otherwise, it would be waste of time and money. On the other hand, had the parties reached the settlement through out of court proceedings, it would be an open question whether the outcome of the process serves justice because a settlement is confidential and produces no precedent. Consequently, the settlement has no effect on the community at large, and it will be of out of public discussion regarding if justice is served because the settlement itself will be considered as justice between parties even though it is not. Besides, as far as cases in which parties are not interested in a mediated settlement but simply want a judicial determination of their rights are concerned, mediation -voluntary or mandatory- would not be a correct solution. Accordingly, in terms of all sorts of disputes in general, mediation cannot be an alternative to court litigation as well as arbitration whereby parties are tried and forced by a judgment unless they voluntarily enter and participate in order to reach the settlement during the process.
It is adopted that mandatory mediation should not conflict with the principle of judicial protection enshrined in Art 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as Art 36 of the Turkish Constitution. In this respect the Court of Justice of the European Union and the Turkish Constitutional Court made their judgment that mandatory mediation that is a necessary condition for the admissibility of actions before courts will not incompatible with the right of effective judicial protection provided that such a requirement does not prevent parties from exercising their right to access to the judicial system. In conclusion, mandatory mediation can be preferred by law as long as the outcome of the process is not binding on parties who have control over the whole process; it does not cause a substantial delay for bringing legal proceedings; it suspends the period of the time-barring of claims.
I argue that mandatory mediation can be adopted for some disputes but not all commercial matters, let alone international ones. Turkish Mediation Act nr. 6325 does not provide in which disputes the parties shall start the necessary mediation process before filing a case in a Turkish court; instead it explains the procedure for mandatory mediation in Art 18/A and allows other laws to provide mandatory mediation. In this respect Turkish Labor Law, the Commercial Code, and the Consumer Protection Act have adopted mandatory mediation for the cases they involve. As a principle, it should be for the Turkish Mediation Act to decide which disputes will be subject to mandatory mediation before filing a case in the courts rather than other relevant laws in terms of legal predictability and certainty.
In my opinion, an International Mediation Act should be enacted based on UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting From Mediation, and this Act should be considered as an implementing legislation for the United Nations Convention on International Settlement Agreements Resulting From Mediation (Singapore Convention), which Turkey acceded. This Act can also provide a mandatory mediation for certain international disputes which are not complex and less than a certain amount of money. Again, court-referred mediation can be preferred.
I don’t think mandatory mediation for all international commercial disputes would promote ADR and reduce the burden of Turkish courts, but it only delays access to the judicial process by wasting time because the current Turkish Mediation Act does not satisfy the requirements of international mediation needs. Likewise, the Commercial Code adopts mandatory mediation for all commercial cases defined as large.
On the other hand, under the current Mediation Act only accredited Turkish citizens can be a mediator, and no other person, including foreigners, would be able to be chosen as a mediator in an international commercial mediation process conducted in Turkey. This condition may be considered as an obstacle for ad hoc mediation processes, including the mediation conducted by an institution in Turkey. Therefore, a new international mediation act based on UNCITRAL Model Law should be enacted and provided with the international mediation needs, just like the International Arbitration Act.
