Alternative dispute resolution methods are dispute resolution methods. A neutral third party helps parties with the dispute resolve the dispute, creates a solution for the dispute resolution, is with the state’s judicial bodies, and optional dispute resolution methods. Alternative remedies are dispute resolution methods that provide an alternative to jurisdiction in state courts.
Mediation, one of the alternative dispute resolution methods, is a dispute resolution method that the parties can use to resolve disputes between them through an impartial third party outside the judiciary. The mediator is not a decision-making body like a judge or arbitrator. It cannot evaluate the parties’ reasons or direct them to claim their rights. Still, the mediator can only direct communication and compromise for the parties to agree.
According to the law, the mediator is obliged to fulfill his duty with care, impartiality, and equality. The mediator cannot act or behave that would cause doubts about its impartiality. The person appointed as a mediator is obliged to inform the parties if such a situation occurs. Despite this, if the parties request it together, the mediator can continue its activity. The mediator cannot transfer his duty to another person, even partially (HUAK Yönetmeliği art. 11/1). To have the title of mediator, the person must also be registered in the registry. “It is also of great importance that mediators comply with the obligations stipulated in the law within the framework of ethical rules.” (Oğuz, 2018, p.283) Besides, the supervision of this compliance is also essential because this control ensures the healthy progress of the activity whoever may not manage the mediation activity except the person assigned.
In a mediation process, the parties must first rely on the mediator. An expectation is created that the dispute will be resolved together with the mediation agency. Thus cooperation towards resolution occurs between the parties. This contributes to the peaceful execution of the process and the resolution and settlement of the dispute.
Before the mediator starts its activity, the mediator informs the parties about the principles, process, and legal consequences of mediation; The nature of the agreement document has to be explained personally and directly about its results. Uzun mentioned that the agreement document is a document that will be issued if the parties reach an agreement as a result of the mediation activity. It is a judgment document with annotation by the court. (2013)
The mediator can meet with the parties separately or together. The parties can also participate in this meeting through their attorneys. A separate meeting of the mediator with the parties is called a particular case. This meeting is usually held in three situations. The aim is to ensure that the parties do not leave the solution to the dispute. The first of these situations is the parties’ inability to control their anger while talking about the incident. What needs to be done is to calm the parties, give information, and encourage them. In the second case, the parties’ expectations arising from the judicial process increase without a sufficient legal basis. What needs to be done in this is to inform and encourage the parties about the issue. Finally, it is to ask questions that generally allow the parties to prioritize their interests and make the necessary analysis.
Mediators’ all kinds of attempts and actions can be considered an advertisement in the legislation; They are prohibited from using adjectives other than lawyer and academic titles. The mediator has the right to demand fees and expenses for the activity he/she has performed. (HUAK m 7/1) In case of termination of this activity, the mediator is obliged to keep the notification made to him, the documents submitted and in his possession, and the report issued for five years.
As a result, the Mediation institution is a beneficial method for resolving disputes. As I wrote, the rights and obligations of the person assigned in this institution, the parties, of course, have rights. Without adhering to these, a healthy process will not be carried out, and the right solution will not be found. Therefore, these should be considered first.
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Bibliography
- Akkoyun, M. B. (2019), Türk Hukuk Sisteminde Alternatif Uyuşmazlık Çözüm Yöntemleri.
- Bürosu, P. H. (2021). Arabulucuların Hak ve Yükümlülükleri. Polat Hukuk Bürosu, retrieved 21 May 2021
- Erdem, A. A. (2017), İş Uyuşmazlıklarında Arabuluculuk, HR Dergisi.
- Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu, (2012).
- Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu Yönetmeliği, (2018).
- OĞUZ, D. Ö. (2018). Türk İş Hukukunda Arabulucunun Yükümlülükleri, 283.
- Uzun, A. A. (2013). Hukuk Uyuşmazlıklarında Arabuluculuk, Erdem&Erdem Law Office, retrieved 21 May 2021
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