An analysis of the key challenges to the widespread use of mediation in the Turkish construction industry

• Author: Deniz Ilter
• Position: ITU Project Management Center, Istanbul Technical University, Istanbul, Turkey

1 Introduction

Preparation of the Draft Law on mediation in legal disputes (“the Draft Law”) by the Turkish Ministry of Justice in 2008, has opened a new era in the deployment of alternative dispute resolution (ADR) methods in Turkey. It was a very important milestone in the actions of the government in promoting ADR, displaying its resolve for the institutionalisation of mediation in Turkey. Predicated on the European Council (EC) Directive on certain aspects of mediation in civil and commercial matters (“the Directive”), the Draft Law started a heated debate, not only on the provisions introduced by the Draft, but also on the overall applicability of mediation in Turkey. On the other hand, these developments also caused a considerable surge in the interest in mediation, as evidenced by the rising number of seminars, discussions, articles, education programs, and even new businesses related to mediation.

The Directive defines mediation as:

[…] a structured process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator¹.

According to the Directive:

[…] mediation can provide cost-effective, quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties and agreements resulting from mediation are more likely to be complied with voluntarily and help preserve an amicable and sustainable relationship between the parties².

Richbell (2008, p.19) defines mediation in the construction industry as “a voluntary, flexible process within a framework of joint and private meetings where the mediator helps the parties clarify the key issues and construct their own settlement.”

Wherever mediation is put into use, it has found wide application in the construction industry, if not the widest; not surprisingly there is now a growing interest in mediation in the Turkish construction industry. However, no research has been carried out to investigate the implications of the Draft Law for the Turkish construction industry. In view of these developments, this paper analyses the context enfolding the rather new mediation phenomenon in Turkey by investigating the Draft Law in terms of the requirements of the Directive, presents empirical data on the current perceptions of mediation in the Turkish construction industry and, identifies the key challenges facing the widespread adoption of mediation in the industry.

2 The Directive

The European Commission presented a Green Paper on ADR in civil and commercial law³ in 2002, initiating wide-spread consultations with the member states and interested parties on possible measures to promote the use of mediation and launching broad consultations on the measures to be taken. The main purpose of the Green Paper was to come up with answers to the delicate question of the balance to be achieved between the need for flexibility and the need to guarantee quality of results, and the harmonious relationship with court procedures. It also highlighted the existing achievements and initiatives in this area both in the member states and in the community. The questions put forward in the Green Paper concerned the decisive elements of the different forms of ADR, such as clauses providing agreements to go to ADR, the problem of periods of prescription and limitation, the need for confidentiality, the validity of consent, the effect of resulting agreements particularly for enforcement, training for mediators and other third parties, their accreditation and the rules governing their liability (http://ec.europa.eu/civiljustice/adr/adr_ec_en.htm).

This consultation resulted in the proposal for a Directive⁴ in October 2004, seeking to facilitate access to dispute resolution by promoting the use of mediation, which is among the most widely used methods of ADR. The proposal for a Directive sought to further the use of mediation by making certain legal rules available within the legal systems of the member states. These rules cover the areas of confidentiality of the mediation process and of mediators as witnesses, enforcement of agreements for settling disputes as a result of a mediation and the suspension of the running of periods of prescription and limitation of actions while a mediation is in process, This latter possibility removes one potential disincentive to the use of mediation. The fact that there is no attempt to regulate or harmonise the laws of the member states encourages the adoption of training of mediators and the adoption of norms of conduct to secure the quality of mediation on a consistent basis throughout the Union (http://ec.europa.eu/civiljustice/adr/adr_ec_en.htm).

Finally in 2008, the European Parliament and the Council adopted the Directive on certain aspects of mediation in civil and commercial matters⁵. The objective of this Directive is to facilitate access to ADR and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings (www.europarl.europa.eu/oeil/file.jsp?id=5210432&noticeType=null&language=en). The Directive applies to civil and commercial matters except as regards rights and obligations which are not at the parties' disposal under the relevant applicable law. The Directive comprises the base rules to be adopted by the member states for the implementation of mediation concerning the referral to mediation, ensuring the quality of mediation, the enforcement of the settlement agreements and suspension of limitation periods. The provisions of the Directive are analysed in detail in Section 4.

3 The Draft Law

As a part of the adoption of the European Union (EU) acquis process, a Draft Mediation Law has been prepared by the Ministry of Justice predicated⁶ on the Directive and this constituted the first comprehensive legislation on mediation in Turkey. The objective of this Draft Law is determined as:

[…] facilitating the resolution of private law disputes by a voluntary alternative dispute resolution method which is overseen by an independent and impartial trained expert third party who brings the parties together in systematic negotiations and promotes their understanding of one another and accordingly establishes a means of communication in order for the parties to reach mutual solutions⁷.

The Ministry of Justice prepared the first Draft Law in September 2007 and submitted to the relevant authorities in order to be discussed. This first version was heavily criticised by the bars for two reasons in particular. First, because the mediation agreement signed by the parties and the mediator was in the nature of a court decision and directly enforceable; second, becoming a mediator as a profession was not a privilege given to lawyers only, but open to individuals from all professions after a training. Some unclear...