Other DisputesSubjectto VoluntaryMediation

Scope

This heading covers private law disputes that do not fall within the scope of mandatory pre-litigation mediation but arise from matters and transactions over which the parties may freely dispose. In such disputes, applying to a mediator is not compulsory; the parties may opt for mediation by mutual consent. Since the application is based on a joint choice, the scope of the sessions is also determined jointly by the parties.

Common issues

• Disputes arising from non-commercial partnerships and simple partnership relationships
• Agreements on the division of an estate and financial matters between heirs
• Agreements on the financial consequences of divorce and the liquidation of the matrimonial property regime
• Receivable and compensation claims falling outside the scope of mandatory pre-litigation mediation
• Disputes concerning the interpretation and termination of contracts
• Restructuring of debtor–creditor relationships
• Claims for compensation of damage falling outside neighbour relations

How does mediation work in this type of dispute?

Disputes in this area are subject to voluntary mediation; applying to a mediator is not a precondition for bringing an action. The general framework is set by Law No. 6325 on Mediation in Civil Disputes.

• Mediation applies to disputes arising from matters and transactions over which the parties may freely dispose. The fact that a matter relates to private law is not sufficient on its own; matters that concern public order and cannot be regulated by agreement of the parties are not suitable for mediation.
• Disputes involving allegations of domestic violence are not suitable for mediation. Divorce itself is not left to the will of the parties; on matters relating to its financial consequences, however, the parties may seek an agreement. In matters subject to judicial supervision, such as custody of a child, the will of the parties is not decisive on its own.
• One party may propose mediation; if the other party accepts, a mediator is chosen jointly. Mediation may also be agreed upon before an action is filed or while proceedings are pending.
• Conciliation in criminal law (uzlaştırma) is a separate institution and falls outside the scope of this heading.

The mediator is an independent and impartial third party; the mediator does not make decisions and does not act as an adviser to either party. The mediator listens to the parties and helps them explain their claims to each other and discuss options together. The sessions are confidential; whether to continue and whether to reach an agreement is the choice of the parties. The settlement agreement becomes a document having the force of a court judgment under the conditions laid down in Law No. 6325.

Matters that may be discussed in the sessions

• Contractual claims suitable for mediation
• Receivables and payment terms: for example, not only the amount but also the timing of instalments or the return of an item
• Claims for pecuniary compensation
• Partial or full agreement: whether the whole dispute or only a certain part of it is to be addressed

Reaching an agreement on one heading does not mean that all other claims are waived. For this reason, the agenda of the sessions and the scope of the terms accepted are clearly distinguished from each other.

Process and points to note

For voluntary mediation, it is useful for the parties to define the dispute, set out their claims and expectations in writing and prepare the relevant documents. In matters concerning inheritance, the matrimonial property regime or partnerships, documents such as title deed records, bank accounts, the partnership agreement and certificates of inheritance may be required.

If an agreement is reached, who undertakes which obligation, the time limits or payment terms and any matters left open are recorded in writing. If no agreement is reached, the parties’ right to bring an action is reserved; the running of limitation and preclusive periods should be assessed separately.

Our office’s approach

The office assesses whether the dispute is suitable for mediation, reviews the documents and sets out, from a legal perspective, the options for agreement available to the parties. Preparation for the mediation process and the drafting or review of the settlement text fall within the scope of this work. Where the role of mediator has been assumed in a dispute, the office does not act as counsel for any of the parties to that dispute.