LAW ON MEDIATION IN CIVIL DISPUTES
Law Number : 6325
Date of Enactment : 7/6/2012
Published in the Official Gazette: 22/6/2012 – 28331
The English version of this Law is last updated on 5/05/2017
This translation has been produced on the basis of the Turkish version of the Law published on the official legislation website ‘http://www.mevzuat.gov.tr’
CHAPTER I
Purpose, Scope and Definitions
Purpose and scope
ARTICLE 1 – (1) The purpose of this Law is to regulate the procedures and principles to be applied in the resolution of civil disputes by way of mediation.
(2) This Law shall be applied in private law disputes, arising solely from the acts or proceedings which the parties may freely dispose, including those possessing the element of foreignness, in so far as disputes containing domestic violence are not suitable for mediation.
Definitions
ARTICLE 2 – (1) In the implementation of this Law;
a) Mediator shall mean a real person who carries out the mediation activity, and is enrolled in the register of mediators regulated by the Ministry.
b) Mediation shall mean a dispute resolution method carried out voluntarily, by employing systematic techniques, with the participation of an impartial and independent third person who brings the parties together to discuss and negotiate, who establishes a communication process between the parties in order to ensure that they understand each other and find their own solutions by this means, and who is specially trained.
c) Ministry shall mean the Ministry of Justice.
ç) Department shall mean the Department of Mediation to be established under the Directorate General for Legal Affairs.
d) Directorate General shall mean the Directorate General for Legal Affairs.
e) Board shall mean the Board of Mediation.
f) Register shall mean the register of mediators.
CHAPTER II
Basic Principles on Mediation
Voluntariness and equality
ARTICLE 3 – (1) The parties shall be free to resort to a mediator, to continue or finalize the process, or to renounce such process.
(2) The parties shall enjoy equal rights, both in resort to the mediator and throughout the whole process.
Confidentiality
ARTICLE 4 – (1) Unless agreed otherwise by the parties, the mediator shall be liable to keep confidential the information and documents which are submitted to him/her within the framework of the mediation activity or which he/she obtains otherwise, and other records.
(2) Unless agreed otherwise, the parties shall also be obliged to abide by the principle of confidentiality on this matter.
Non-usability of statements or documents
ARTICLE 5 – (1) The parties, the mediator or a third person including those participating in the mediation, may not provide the following statements or documents as evidence or may not testify in regard to such, when a civil law suit is filed with respect to the dispute or arbitration is resorted to:
a) The invitation for mediation sent by the parties or the willingness of a party to participate in the mediation activity.
b) The opinions or proposals put forward by the parties for the resolution of the dispute by means of mediation.
c) The acceptance of the proposals put forward by the parties, or any fact or allegation during the mediation process.
ç) The documents prepared solely for the mediation activity.
(2) The provision of the first paragraph shall be applied regardless of the form of the statement or document.
(3) The courts, arbitrators or administrative authorities shall not demand the disclosure of the information specified in the first paragraph. Such statements or documents shall not constitute the basis for a judgment, even if they are submitted as evidence, contrary to what is envisaged in the first paragraph. However, the mentioned information may be disclosed to the extent stipulated by a provision of law or to the extent required for the implementation and execution of the agreement reached at the end of the mediation process.
(4) The above paragraphs shall be applied in civil law suits and arbitration, without regard to their relevance with the subject of mediation.
(5) Reserving the restrictions stated in the first paragraph, the evidence which can be put forward in civil law suits and arbitration shall not become inacceptable solely because it is submitted in mediation.
CHAPTER III
Rights and Liabilities of Mediators
Using the title
ARTICLE 6 – (1) The mediators enrolled in the register shall have the right to use the title of mediator and exercise the powers granted by such title.
(2) The mediator shall be obliged to indicate his/her title during the mediation activity.
Demanding the wages and expenses
ARTICLE 7 – (1) The mediator shall have the right to demand wages and expenses in return for the activity carried out by himself/herself. The mediator may also demand an advance payment for the wages and expenses.
(2) Unless agreed otherwise, the wage of the mediator shall be determined according to the Minimum Wage Tariff of Mediation which is in effect on the date when the activity ends; and the wages and expenses shall be paid equally by the parties.
(3) The mediator shall not receive any wages for intermediation for certain individuals or recommendation of certain individuals with respect to the mediation process. The proceedings which are contrary to this prohibition shall be null and void.
Meeting and communicating with the parties
ARTICLE 8 – (1) The mediator may meet or communicate separately with each one of the parties or collectively. The parties may participate in these meetings through their attorneys.
Performing the duty carefully and impartially
ARTICLE 9 – (1) The mediator shall perform his/her duty carefully, impartially and personally.
(2) In case of presence of significant circumstances and conditions which will require any suspicion about the impartiality of the mediator, the person assigned as the mediator shall be liable to inform the parties in this respect. If the parties make a collective demand to the mediator despite such information, the mediator may assume the duty or may sustain the duty which he/she has undertaken.
(3) The mediator shall be liable to observe equality between the parties.
(4) The mediator may not later assume the duty as an attorney-at-law of one of the parties in a law suit filed in relation to the dispute for which he/she has acted as mediator.
Prohibition of advertisement
ARTICLE 10 – (1) The mediators shall be prohibited from engaging in any attempt or action that might be considered as advertisement in order to undertake a work and , from using a title other than mediator, attorney-at-law and academician on their signboards and printed papers.
Enlightening the parties
ARTICLE 11 – (1) The mediator shall be liable to duly enlighten the parties, at the beginning of the mediation activity, with respect to the principles, process and outcomes of mediation.
Paying dues
ARTICLE 12 – (1) The mediators shall pay an admission fee during their enrolment in the register and a yearly due for each year.
(2) The admission fee and the yearly dues shall be recorded as income at the general budget.
CHAPTER IV
Mediation Activity
Resort to a mediator
ARTICLE 13 – (1) The parties may agree to resort to a mediator, before the law suit is filed or during the course of the law suit. The court may also enlighten and encourage the parties to resort to a mediator.
(2) Unless agreed otherwise, the proposal of one of the parties to resort to a mediator shall be considered to be rejected if such proposal is not answered within thirty days.
Selecting the mediator
ARTICLE 14 – (1) Unless agreed on another procedure, the mediator or mediators shall be selected by the parties.
Performing the mediation activity
ARTICLE 15 – (1) The mediator shall invite the parties to the first meeting, as soon as possible, after being selected.
(2) The parties may freely agree on the mediation procedure on the condition that it is not contrary to mandatory rules of law.
(3) Unless it is agreed by the parties, the mediator shall perform the mediation activity, having regard to the nature of the dispute, the demands of the parties and the procedures and principles necessary for the rapid resolution of the dispute.
(4) The proceedings which, as required by their nature, may only be carried out by a judge as the exercise of a judicial power, shall not be carried out by the mediator.
(5) Where the parties state that they will resort to a mediator jointly after a law suit is filed, the proceedings shall be postponed by the court for a period of not more than three months. This period may be extended for up to three months, upon the joint application of the parties.
(6) The parties may participate in the mediation negotiations personally or through their attorneys.
Commencement of mediation process and its effect on the periods of time
ARTICLE 16 – (1) In case of resort to a mediator before a law suit is filed, the mediation process shall commence as of the date on which the parties are invited to the first meeting and an agreement is reached between the mediator and the parties to continue the process and this situation is documented through a minute. In case of resort to a mediator after the law suit is filed, this process shall commence as of the date on which the court’s invitation to the parties for mediation is accepted by the parties, or the parties state to the court, in writing, outside the course of the hearings, that they have reached an agreement, or such statement is written in the court records during the hearings.
(2) The time elapsed from the commencement to the completion of the mediation process shall not be taken into account in the calculation of the statute of limitations and period of prescription.
Completion of mediation
ARTICLE 17 – (1) The mediation activity shall be considered to be completed in the cases stipulated below:
a) An agreement reached by the parties.
b) Confirmation, by the mediator, after consulting the parties, that further efforts for mediation are unnecessary.
c) Notification of withdrawal from mediation activity, by one of the parties to the other party or to the mediator.
ç) Termination of the mediation activity upon an agreement reached by the parties.
d) Confirmation that the dispute is not suitable for mediation or it is related to a crime which does not fall within the scope of reconciliation in accordance with the Code of Criminal Procedure No. 5271 dated 4 December 2004.
(2) The agreement or disagreement of the parties or the outcomes of the mediation activity shall be documented through a minute, at the end of the mediation activity. Such document to be prepared by the mediator shall be signed by the mediator, the parties or their attorneys. If the document is not signed by the parties or their attorneys, it will signed only by the mediator, by indicating the reason.
(3) The parties shall decide which matters will be included, apart from the conclusion of the activity, in the minute to be prepared at the end of the mediation activity. The mediator shall make the necessary explanations to the parties through this minute and its outcomes.
(4) In case of completion of the mediation activity, the mediator shall be obliged to keep, for a period of five years, the notification made to him/her in relation with this activity, the documents submitted and retained, and the minute prepared according to the second paragraph. The mediator shall send a copy of the documents prepared at the end of the mediation activity to the Directorate General within one month as of the completion of the mediation activity.
Agreement of the parties
ARTICLE 18 – (1) The scope of the agreement reached at the end of the mediation activity shall be determined by the parties; in case of preparation of an agreement document, this document shall be signed by the parties and the mediator.
(2) If the parties reach an agreement at the end of the mediation activity, they may demand an annotation on enforceability of the agreement. If mediation is resorted to before the law suit is filed, the annotation on enforceability of the agreement may be demanded from the court to be determined as per the rules on duties and powers in regard to the original dispute. In case of resort to mediation during the course of the hearings, the annotation on enforceability of the agreement may be demanded from the court where the case is heard. The agreement including this annotation shall be deemed as a document with the force of a verdict.
(3) The issuance of the annotation of enforceability is an undisputed judicial act and the examination concerning this may be carried out through the file. However, in family law disputes suitable for mediation, the examination shall be held in hearings. The scope of such examination shall be limited to whether the content of the agreement is suitable for mediation and compulsory enforcement. Where an application is made to the court for the issuance of annotation of enforceability for the agreement document, and the concerned party appeals the decisions given upon such application, a fixed fee shall be collected. If the parties wish to use the agreement document in another official act, without obtaining an annotation of enforceability, a fixed stamp duty shall also be collected.
CHAPTER V
Register of Mediators
Keeping the register of mediators
ARTICLE 19 – (1) The Department shall keep the register of the persons who have attained the authority to mediate in private law disputes. The information pertaining to the persons included in this register shall also be announced electronically by the Department.
(2) The procedure and principles concerning the keeping of the register of mediators shall be designated in the regulations to be prepared by the Ministry.
Conditions for enrolment in the register of mediators
ARTICLE 20 – (1) The enrolment in the register shall be made upon the written application of the concerned to the Department.
(2) In order to be enrolled in the register of mediators, it shall be required to;
a) be a Turkish citizen,
b) be a graduate of a faculty of law with at least five years of seniority in the profession
c) be fully competent,
ç) have no criminal record for committing an intentional offence,
d) complete the training on mediation and succeeding in the written and practice examination held by the Ministry.
(3) The mediator may commence his/her activities as of the date of enrolment in the register.
Deletion from the register of mediators
ARTICLE 21 – (1) The Department shall delete the record of the mediator who is enrolled in the register although he/she does not provide the qualifications required for mediation or who loses such qualifications later.
(2) The Department shall warn, in writing, the mediator who is confirmed to fail to fulfil the liabilities stipulated in this Law; in case of non-compliance with such warning, the Department shall, if necessary, demand the Board to delete the mediator’s name from the register after taking the mediator’s plea.
(3) The mediator may ask for the deletion of his/her record from the register of mediators at any time.
CHAPTER VI
Mediation Training and Training Institutions
Mediation Training
ARTICLE 22 – (1) The mediation training shall refer to a training, which is received following the completion of a faculty of law and which includes fundamental information on the conduct of the mediation activity, communication techniques, negotiation and dispute resolution methods and behavioural psychology; and the other theoretical and practical information to be set forth in the regulation.
Granting a license to training institutions
ARTICLE 23 – (1) The mediation training shall be provided by the faculties of law at the universities which have law faculties, the Union of Turkish Bar Associations and the Justice Academy of Turkey. These institutions may provide training, by receiving a license from the Ministry. The list of the training institutions shall be published electronically.
(2) The application for license shall be made in writing. Reasoned information shall be provided in this application, with respect to the training program, the number and specialties of trainers, the sources of financing of the training institution or the training program.
(3) Based on the documents submitted in the application, if it is confirmed that the training will achieve its goal and the continuity of training will be ensured at the training institutions, the relevant training institution shall be granted with a license which will be valid for at most three years.
Extension of the license period
ARTICLE 24 – (1) A training institution enrolled in the register may demand, in writing, the extension of the validity period of its record in the register, one year, at the earliest, and three months, at the latest, before the end of the enrolment period. In cases where it is understood, from the reports submitted by the training institution in accordance with Article 26, that the mediation training continues successfully and where the reasons prescribed in Article 27 are not present, the validity period of the license granted may be extended for three years at each time. The training institution shall remain enrolled in the register until a decision is taken about its timely made application.
Mediation authorization certificate
ARTICLE 25 – (1) The training institutions shall issue a certificate to the persons who successfully complete the mediation training.
Obligation to inform the Department
ARTICLE 26 – (1) In January in each year, the training institutions shall submit the Department a report about the scope, content and success of the training activity carried out in the previous year.
Cancellation of the permission granted to the training institution
ARTICLE 27 – (1) In the following cases, the license granted to the training institution shall be cancelled by the Board upon the request of the Ministry:
a) Removal of one of the conditions required for granting the license or confirmation of the absence of such.
b) Inability to provide adequate training.
c) Counterfeiting or significant errors in the issuance of mediation authorization certificates.
ç) Non-fulfilment of the liability to report as per Article 26, despite the warning given.
d) Confirmation of discontinuity of the training activity.
CHAPTER VII
Establishment and Duties
Establishment and organization
ARTICLE 28 – (1) A Department shall be established within the body of the Directorate General to perform the duties set forth in this Law.
(2) A Board of Mediation shall be established within the Ministry, with a view to perform the duties set forth in this Law, with regard to mediation services.
Department
ARTICLE 29 – (1) The Department shall consist a head of department, adequate number of rapporteur judges, and other personnel.
Duties of the Department
ARTICLE 30 – (1) The duties of the Department are as follows:
a) Ensuring that mediation services are carried out regularly and efficiently.
b) Making publications related to mediation, encouraging and supporting the scientific studies on this matter.
c) Carrying out any kind of decisions or proceedings related to the functioning of the Board, and cooperating with the relevant ministry, other public institutions and organizations, universities, professional organizations with public institution status, public interest foundations and associations and appropriate voluntary real and legal persons in relation with its duties.
ç) Publicizing the mediation institution, informing the public on this matter, organizing or supporting the scientific organizations such as national and international congresses, symposiums and seminars.
d) Monitoring the country-wide mediation practices, keeping and publishing the relevant statistics.
e) Submitting to the approval of the Ministry, the applications made by the institutions which will provide mediation training for this purpose and the finalization of the request for extension of the validity period of a record in the register, listing down the training institutions which will provide meditation training and publishing the list electronically.
f) Keeping the register of mediators, concluding the requests for enrolment in the register, deciding todelete the mediator from the register as per the first and third paragraphs of Article 21 and electronically announcing the information on the persons included in this register.
g) Keeping record of the final minutes drafted by the mediators and archiving a copy of such documents
ğ) Conducting examinations and researches on laws and regulatory acts, which fall within its area of responsibility, and making recommendations to the Directorate General
h) Preparing the annual activity report and the activity plan for the upcoming year and submitting them for the the information of the Board.
ı) Preparing the Annual Minimum Wage Tariff of Mediation.
Board
ARTICLE 31 – (1) The Board shall consist of the following members:
a) Director General for Legal Affairs.
b) Head of Department.
c) Two judges to be selected by the High Council of Judges and Prosecutors, from among the judges who are assigned to the first category and serve in the civil courts.
ç) Three representatives from the Union of Turkish Bar Associations.
d) One representative from the Union of Turkish Public Notaries.
e) One academician to be selected by the Council of Higher Education, from the field of private law.
f) Three mediators to be selected by the Minister of Justice.
g) One representative from the Union of Chambers and Commodity Exchanges of Turkey.
ğ) One representative from the Confederation of Turkish Tradesmen and Craftsmen.
h) Director of Training Centre of the Justice Academy of Turkey.
(2) The Chair may invite the specialists to the Board meetings, on the basis of the requirements.
(3) The chair of the Board shall be the Director General. The Head of Department shall chair the Board at the meetings where the Director General is absent.
(4) The Board shall convene at least twice a year, in March and September. Furthermore, the Board may be summoned at any time, upon the request of the Chair or of at least five members.
(5) The Board shall take decisions by absolute majority of the total number of members. The member who does not participate in two consecutive meetings, without excuse, shall lose his/her membership.
(6) The term of office of the Board members assigned from outside the Ministry shall be three years. The members, whose terms of office expire, may be reassigned.
(7) In accordance with the provisions of the Travel Expense Law No. 6245 dated 10 February 1954, the Ministry shall cover the daily expenses, transportation and accommodation costs and other necessary expenses of the Board members participating from other bodies.
(8) The working procedure and principles of the Board shall be arranged by a regulation.
Duties of the Board
ARTICLE 32 – (1) The duties of the Board are as follows:
a) Determining the basic principles concerning the mediation services and the codes of practice of mediation.
b) Establishing the basic principles and standards concerning the mediation training and the examination to be held at the end of such training.
c) Determining the rules concerning the supervision of the mediators.
ç) Amending, if necessary, and finalizing the draft regulation which should be issued in accordance with this Law and is prepared by the Directorate General,.
d) Cancelling the training licenses of the training institutions.
e) Deciding to delete a mediator from the register within the scope of the second paragraph of Article 21.
f) Setting the admission fee and yearly dues to be paid by mediators to the register.
g) Approving the Minimum Wage Tariff, by making amendments if necessary.
ğ) Making recommendations to increase the efficiency of the activities to be carried out by the Department.
h) Delivering opinions about the annual activity report and plan of the Department.
ı) Determining the contributions that may be provided by the institutions and organizations in relation with the matters included in the activity plan of the Department.
CHAPTER VIII
Criminal Provisions
Breach of confidentiality
ARTICLE 33 – (1) Any person, who acts contrary to the liability stipulated in Article 4 of this Law and who the legally protected interests of an individual, shall be sentenced to imprisonment for up to six months.
(2) The investigation and prosecution of such offences shall depend on a complaint.
CHAPTER IX
Final and Temporary Provisions
Cadres(1)
ARTICLE 34 – (1) The cadres in the annexed lists (1) and (2) have been formed and added to the chapters pertaining to the Ministry of Justice in the tables (I) and (II) annexed to the Decree Law No. 190 dated 13 December 1983 on the General Cadre and Its Procedure.
Amended provisions
ARTICLE 35 – (1) The clause of “mediation” has been added after the clause of “arbitration” in the subparagraph (d) of the first paragraph of Article 12 of the Attorney’s Law No. 1136 dated 19 March 1969.
(2) In the Code of Civil Procedure No. 6100 dated 12 January 2011;
a) the clause of “or mediation” has been added after the clause of “peace” in the first paragraph of Article 137,
b) the clause of “or mediation” has been added after “peace” in the second and third paragraphs of Article 140,
c) the clause of “or mediation” has been added after the “the parties to peace” in the second paragraph of Article 320.
Regulations
ARTICLE 36 – (1). The auditing of the institutions which will provide mediation training and the duration, content and standards of the training, the determination of the principles and rules of written and practice examinations to be held, the regulation of the register of mediators and the conditions required for a mediator, the supervision and monitoring of mediators, and other matters concerning the implementation of this Law shall be arranged by regulations to be issued by the Ministry.
(1) See the Official Gazette dated 22 June 2012 numbered 28331, with respect to the cadres included in this article.
PROVISIONAL ARTICLE
1 – (1) The establishment and organization shall be completed within two months as of the date of publication of this Law.
(2) The institutions and organizations specified in Article 31 of this Law shall notify the Directorate General of the representatives to serve in the Board within two months as of the date of publication of the Law in the Official Gazette. Each one of the institutions in the subparagraphs (ç), (g) and (ğ) of the first paragraph shall appoint one extra representative in substitution for three mediators to be selected by the Minister of Justice for the first three years.
(3) The term of office of the representatives notified by the relevant institutions in substitution for the mediators shall be one year in the Board. The Ministry of Justice shall notify the Board of the names of three mediators to be selected at the end of this period. The mediators selected by this means shall complete the terms of office of the Board members whom they are appointed to replace.
(4) The Board shall convene within three months as of the completion of the establishment and organization specified in the first paragraph. The date of the first meeting of the Board shall be considered as the beginning of the three-year term of office of the Board members.
PROVISIONAL ARTICLE 2 –
(1) The regulations set forth in this Law shall be issued within three months as of the first Board meeting.
Entry into force
ARTICLE 37 – (1) Under this Law;
a) Articles 28 to 32 and provisional articles shall enter into force on the date of publication of the Law,
b) Other provisions shall enter into force one year after the date of publication.
Execution
ARTICLE 38 – (1) The provisions of this Law shall be executed by the Council of Ministers.