Mediation Agreement

A mediation agreement can be defined as an agreement reached by the parties to a dispute by expressing their will to settle the dispute between them through mediation. The mediation agreement either can be concluded between the parties as a separate agreement or as a condition of an agreement between the parties. While the consensus of an agreement, separate from the agreement, on application to mediation is referred to as a “mediation agreement”, the consensus of the parties that they will apply to mediation as a condition of the main agreement is referred to as a “mediation condition”[1].

In case mediation is concluded as a separate agreement, it is necessary to specify which contractual relationship the mediation agreement will apply to and to explain the link between these agreements. Otherwise, uncertainty may arise regarding the dispute arising from which relationship the mediation covers. In order to avoid uncertainty as to which disputes the mediation agreement covers, a general settlement should not be made, and the subject, agreement, relationship on which possible disputes will arise, should be specified in the mediation agreement. In case the mediation agreement is concluded as a separate agreement from the main agreement, the invalidity of any of the agreements will not affect the validity of the current agreement, since there are two different agreements that are independent from each other[2].

Freedom of contract is a general principle as per Turkish Law. Freedom of contract means the freedom to conclude a contract, to terminate a contract, to determine the party, content and form of a contract.  Mediation agreement is not a type of agreement regulated by law. As a result of this, there is no requirement as to form regulated for the mediation agreement. Mediation agreement can be concluded by mutual declaration of intention of the parties on this issue. However, although the mediation agreement is not regulated in the law and a requirement as to form is not specified for this agreement, concluding the agreement in writing will facilitate the claim and proof process.

Since the mediation agreement is an agreement, it must meet the general principles regarding agreements in the Turkish Code of Obligations. In this respect, the mediation agreement should not be contrary to the mandatory provisions of the law, morality, public order, personal rights or the subject matter should not be impossible.

Pursuant to the Article 1 of the Law on Mediation in Civil Disputes, mediation is applied only in the resolution of private law disputes arising from works or transactions on which the parties can freely dispose of. The subject of the mediation agreement is the disputes that the parties can freely dispose of. In the event that a mediation agreement is concluded on an issue that the parties cannot freely dispose of, this agreement will not be valid. For instance, disputes involving allegations of domestic violence are not suitable for mediation. If a mediation agreement is conclude for disputes involving allegations of domestic violence, the agreement will be unlawful and will result in nullity.

The purpose of the mediation agreement is the parties’ desire to initiate the mediation process, which is one of the alternative dispute resolution methods, and to resolve the dispute in this way before a lawsuit is filed[3]. Accordingly, the parties make arrangements in the mediation agreement that will ensure the certainty of the mediation process and allow the dispute to be resolved in an amicable manner.

As per the Article 14 of the Law on Mediation in Civil Disputes, the mediator or mediators are selected by the parties unless another procedure is agreed. In the mediation agreement, the mediator or mediators can be determined by the parties. In addition, the mediation agreement can be arranged by the parties on the following issues:

  • The place and duration of the mediation meetings,
  • The minimum number of meetings to complete the mediation negotiation process,
  • How to participate in the mediation negotiations,
  • How and by whom the costs of the mediation process will be covered,
  • Experts who can contribute to the resolution of the dispute to participate in the mediation process,
  • Responsibilities of the parties regarding confidentiality.

 

The mediation agreement is not currently an agreement that can be described as common in Turkish law. However, the steps taken in mediation, especially with regulations on mediation as a cause of action, raise awareness regarding mediation. In parallel with this, it is clear that with the spread of voluntary mediation activities, mediation agreements will find a wider application area.

[1] ÖZBEK, Mustafa Serdar, “Assessment of the Mediation Minimum Wage Tariff”, MÜHFHAD, Gift to Prof. Dr. Ali Rıza Okur, 2014, C. 20, S. 1, s.1123; MEMİŞ, Abdullah Berat, “Mandatory Mediation Procedure in Commercial Disputes”, 2020, s.100.

[2] TAŞPOLAT TUĞSAVUL, Melis, Mediation in Turkish Law, Ankara 2012, s.102.

[3] BORA, Özlem, Mediation Agreement, Atılım University Institute of Social Sciences Private Law Department Private Law Graduate Program Master Thesis, Ankara 2019, p.62.