TURKEY's REPORT: Mediation
TURKEY's REPORT: Mediation
National Rapporteur: NURGÜN CEYLAN

THE CONTRIBUTION OF THE NOTARIAL PROFESSION TO THE ADMINISTRATION OF JUSTICE

THE NEWEST FRONTIERS AND MEDIATION IN PARTICULAR

  1. Please provide some brief information concerning the historical and traditional role of the notariat.

The history of the notariat is as ancient as human history. People have always needed legal security since they began to live together. Because of that, the profession of notary draws its origins from the ancient Sumerians (4th century B.C.).
As we all know, Sumerians' writing is the oldest full-fledged writing that archaeologists have discovered. Also scientists found some written contracts between two parties on tablets made by the Burguls (Burgul means neutral, impartial, wise person). Similarly, there were "scribes" in ancient Egyptian civilization and "tabelliones" in Roman civilization.
The notarial profession has also been recognized for a long time in Turkish Law. There was the effect of Islamic Law in the era of the Ottoman Empire. In the Quran, it is stated that "Whenever you give or take credit for a stated term, set it down in writing. And let a scribe write it down equitably between you" (Verse 282 of the Bakara Chapter; the Holly Quran).  According to this verse, Islamic judges performed the deeds. After Islamic judges, clerks of the courts gave the same service.

After the Administrative Reforms on 3 November 1839, new professions like prosecutors, attorneys and notaries were introduced to the Ottoman Empire's legal system. The Clerks of the Courts Code was made, inspired by French code in 1878.

After the establishment of the Republic, the Notarial Code, which was adapted from the Swiss and Austrian Notarial Codes, was enacted on 1 September 1938. There were several amendments until 1959. The latest Turkish Notarial Code(NK) was enacted on 5 May 1972. Amendment studies are ongoing.

According to the definition of Turkish Notarial Code, the Notarial profession is a public service. Notaries document operations for ensuring security, preventing disagreements, and executing other duties stipulated by law.

According to Article 60, duties of the Notaries are as follows:

  1. Arrange all varieties of legal procedures which are not given legally to any other office, instance or person (are not entitled by law)
  2. Arrange all varieties of legal procedures of undetermined instances that are stipulated formally by this law and as stipulated by the said law,
  3. Make real property sales promise agreements,
  4. Confirm signatures, seals or any signature or date that is written outside the document as stipulated by this law,
  5. Give a copy of the original or copy of the document that is brought to the notary public office as stipulated by this law,
  6. Translate documents from one language to another or from one writing to another,
  7. Make a formal notice against another party, send notification and send notarized minutes,
  8. Enter the necessary registered legal procedures in an official register,

Execute other duties as stipulated by this law and by other laws. 

According to Article 61, Notaries determine situations or forms, value of a place or a thing, identities and expressions of concerned parties, and upon invitation, attend lotteries, elections and meetings of private institutions to certify the situation.

According to Article 71/A, besides judges, Notaries have the competences of:

  1.  Invitation of a spouse who left the family home, with a formal notice,
  2.  Issuing inheritance documents.

These recent competences existing in Article 71/A were established on 1 October 2011. According to the statistics, approximately 30.000 inheritance documents were already issued by the notaries in the first 3 months. This is a promising development towards the goal of decreasing the workload of the courts.

Notaries in Turkey are appointed, in line with their consent, by the Ministry of Justice. They are subject to the age restriction and can work until complete the age of 65. (NK Article 56)

The Notarial profession has always had a very important function in the world and it will continue to be important as long as people have the right of claiming legal security.

 

  1. What are the latest legislative developments (enacted or prospective) in your country?

 

Recently in Turkey, very important legislative changes have lead to the creation of three new main codes. Parliamentary Commissions were working on these new codes for a very long time together with civil commission members including notaries. As a result of these studies, a completely new Turkish Commercial Code (TTK) was accepted by the Parliament and published in the Official Gazette on 14 February 2011. The new Code entered into force on 1 July 2012.

There are a lot of considerable changes compared to the previous Commercial Code. The most remarkable change is the ability to establish a company (joint share or limited) consisting of a single partner. In that case, the company will be managed by professional managers and board members.

Another main change is an obligatory web site for all companies. A company's annual financial accounts will be audited by professional auditors, and shareholders will be able to vote via internet during shareholders' meetings.

The other new code, Turkish Code of Obligations (TBK), was published in the Official Gazette on 11 January 2011 and entered into force on 1 July 2012. There are also fundamental changes concerning the articles of leasing and some other types of contracts. Commercial life and business world in Turkey are now trying to keep up with these two new laws since the beginning of July.

Another amended law is the Code of Civil Procedures (HMK). It was published in the Official Gazette on 12 January 2011, and has been enacted since 1 October 2011. Establishing the Preliminary Investigation Stage is one of the most important changes of the Code of Civil Procedures. Under Article 137, the preliminary investigation stage places important responsibilities on the judge and both parties of the litigation of the case. First of all, at the beginning of the case, parties of the litigation are required to be seriously prepared for the case and the judge must be well acquainted with the file. In addition, encouraging settlement among the parties is another very important responsibility of the judge as required by this stage. At this point, the judge has to encourage the parties going into mediation in order to resolve their dispute. The elimination of the factors that may unnecessarily prolong the proceedings is also among the targets of this stage. From this point of view, the success of the Law depends on the success of the Preliminary Investigation Stage. (HMK. Article 137)

As mentioned above, two new parts were added to Turkish Notarial Code Article 71 providing new competences for Turkish Notaries after 1 October 2011. These competences are the issuing of inheritance documents and the sending of formal notices to any spouse of married couples who left the family home for at least four months.(NK. Article 71/A)  

The Turkish Government has a legislation program in order to adapt the legal system to the European Union Law system. According to this program, two main aims are clearly emphasized.  One of them is to draft a new Constitution (negotiations to change the Constitution are ongoing among political parties represented in the Parliament). The other is to decrease to the bureaucracy in order to facilitate all the public services and jurisdiction services. Also the Turkish Government has been working on a mediation model for the settlement of disputes since 2004. In this context, according to European Union Council Directive 2008/52/EC, the law regarding mediation was prepared. (The Law on the Mediation in Civil Disputes- HUAK – The Mediation Law). The new Mediation Law was accepted and published on 22 June 2012. However, it will not enter into force until 22 June 2013. A few articles of the law, which entered into force by publishing, are about preparation of the infrastructure of the law.

On the other hand, there are several current codes which provide and support the use of alternative dispute resolution tools, especially mediation, arbitration and conciliation tools for a long time. Such as several articles relating to alternative instruments of dispute resolutions in the Law of Labor Courts, Family Courts Code, Code of Administrative Court Procedures, Attorneyship Code, Consumer Protection Code, Insurance Code, Criminal Code, Code of Criminal Procedures, International Arbitration Code and some other regulations.
 

MEDIATION

  1. Legislation

 

What is the present state of notarial legislation relating to mediation?

Definition of mediation:
                                                                   
The Mediation Law states in its preamble that the main purposes of the law are decreasing the workload of courts and providing a more cost-efficient and time-efficient solution for the settlement of disputes. Hence, the basic characteristics of mediation under the law are as follows:

Mediation is a form of alternative dispute resolution (ADR) and a voluntary and confidential way to resolve disputes without giving the decision-making power to someone else (such as a judge or an arbitrator). It involves sitting down with the other party in the dispute and a third party who is neutral and impartial (the mediator). The mediator helps the parties identify theimportant issues in the dispute and decide how they can resolve it themselves. The mediator does not tell them what to do, or make a judgment about who's right and who's wrong. Control over the outcome of the case stays with the parties.

The mediator may not suggest solutions to the parties; his or her task is strictly limited to helping parties realize a common ground regarding the dispute and to reach an understanding of their own.

Mediation is in the presence of neutral and impartial third-party mediators who can help the parties reach an agreement on an alternative to foreclosure in circumstances where such an outcome is feasible.

Mediation is stipulated as a confidential dispute resolution tool, which may be initiated before or during court proceedings. The prescription periods for filing a lawsuit would be suspended during mediation sessions; this brings comfort to the parties that their rights to commence formal proceedings will not be impeded. The confidentiality of mediation sessions suggests that any document, statement or offer issued or made during mediation cannot be submitted to the courts as evidences. This enables the parties to negotiate without restraint, and in an open-minded manner.

The Mediation Law also provides procedural autonomy for the parties. The mediator may collect information regarding the dispute by any means the parties and the mediator deem appropriate. Negotiations and meetings may be held in various forms, including private sessions with each party and common sessions with parties. The flexibility provided under the law facilitates a suitable mediation environment.

These characteristics are promising for mediation to become a reliable and popular alternative dispute resolution tool. The Ministry of Justice will carefully oversee the role of the mediators, which is a criticized aspect of the law. The Mediation Law provides the establishment of a Mediator Registry under the auspices of the Ministry of Justice and a series of qualification criteria to be registered as a mediator: being a Turkish citizen, having law degree and professional experience for at least five years,  being fully capable, not having criminal records except negligent offenses, completing a mandatory course provided by private institutions under the supervision of the Ministry of Justice, and passing two exams (written and practical). (Article 20)

The Mediation Law indicates that the mediation process can be used only in civil matters. If the dispute is about public order or relating to the statutory rules of law or involves domestic violence claims, the mediation tool cannot be used in order to resolve the dispute. (Article 1)

Parties also cannot make an agreement freely in criminal matters by using mediation or any other ADR tools. In Turkish Criminal Law, regulations allow only using the conciliation tool in certain types of crimes whose investigations are due to complaints of victims. (Such as misdemeanours). According to the Code of Criminal Procedures, unless victims complain, certain criminal matters cannot be investigated and the defendant cannot be prosecuted. In these cases, the conciliation instrument can be used.
 
Although there is no article relating to mediation tool specifically written in Turkish
Notarial Code, the notarial profession is already capable and available to be mediators.

Different means of access to mediation (voluntary, by delegation of the judge, obligatory according to law etc.)

Mediation can be both used before or during the court process voluntarily. According to the Mediation Law, application to mediation process is completely voluntary, furthermore, parties can quit the mediation process at any time. Parties do not have to go along with the process if they fail to reach an agreement or the mediation tool will not work for them.

Under the new Code of Civil Procedures Article 137, it is compulsory for the judge to offer to the parties using mediation tool and also it is compulsory for the parties to decide, at the beginning of the lawsuit, whether to use the mediation tool or not. It is an obligation for the judge to offer and encourage using the mediation tool to the parties if the subject of the lawsuit is suitable for the parties to act freely upon. To initiate or continue the mediation process is solely up to the parties. According to the Mediation Law, it is not possible to use the mediation tool if the subject of the dispute is against public order or statutory rules of law or involves domestic violence claims as mentioned above.

Enforceability of agreements arising from mediation:  

Enforceability of the agreement is a key issue of development of the mediation.
Whether successful or not, at the end of the negotiations, the parties are invited to execute a written statement of the outcome with the mediator. If an agreement is reached, the outcome of mediation may be deemed binding with the parties' consent. According to the law, the approval of the competent court is needed for enforcement through execution offices. (Article 18/2)

In our opinion, the notarial approval for the enforcement of the agreement should have been sufficient. Because the main purpose of the mediation is to decrease the workload of the courts and also the notaries can carry out the duty.

Details of procedure:

Parties may agree to apply to the mediator either before or during the trial. As mentioned above, according to the Code of Civil Procedures, the judge has to offer or encourage going to the mediation process to the parties at the beginning of the trial.

In voluntary mediation, one of the parties may suggest to the opposing party or parties to go into the mediation. The offered party has to respond within 30 days. If he/she does not answer during this period of time, the offer will be deemed rejected. (Article 13)
The mediator or mediators may be chosen by the parties by mutual decision.(Article 14). If the parties fail to agree on the same mediator, any solution does not exist in the law. Chosen mediators will invite the parties for the initial meeting within a short period of time. "A short period of time" has not been explicitly determined. It is disadvantageous because the term "short period of time" is relative and can cause problems. (Article 15/1)

Mediators use appropriate techniques and/or skills to open and/or improve dialogues between disputants, aiming to help the parties reach an agreement on the disputed matter. Normally, all parties must view the mediator as impartial, neutral and independent.

The parties are independent in every stage of the process. If the parties apply to mediation during the trial, the trial will be adjourned for three months. (Article 15/5)

Parties can participate in the mediation proceedings in person or they can be represented by their attorneys. (Article 15/6)

The mediation process begins with invitations of the parties. Unfortunately the method of invitation is not clear in the Mediation Law. It is necessary to indicate the method of invitation explicitly because it is important in case of disagreement. In that case, one of the parties may need to use other legal options. In civil law matters, the plaintiff has to regard the prescription periods for filing the lawsuit. According to the Mediation Law, the prescription period of the lawsuit will be suspended by invitation of the parties to go into the mediation (Article 16) and the plaintiff has to prove invitation time exactly with a written evidence in order to show the beginning date of the suspension.

The mediation process will be accepted as complete in the following cases:

  1. In case of agreement,
  2. If continuing the process is unnecessary,
  3. If one of the parties wants to abandon the process,
  4. If the parties agree on finishing the process,
  5. If it is subsequently understood that the dispute is not suitable for mediation. (Article 17)

In any case, a statement will be prepared and signed by the parties and the mediators. (Article 17/2) The approval of the competent court is needed for enforcement through execution offices as mentioned above. After the approval, the agreement can be executed as a court decision.

Relationship between mediation and trial:  

Even though mediation includes an alternative dispute resolution (ADR) system, in fact, it is not an alternative to a trial. Parties can go to court if they cannot reach an agreement. Thus, they cannot lose their other legal options. Using the mediation tool does not discard the possibility of a trial.

Mediation offers an opportunity to evaluate parties' options and appraise possible alternatives to resolve their disputes. Compared to a lawsuit, mediation is faster, cheaper, amicable, private, fair and confidential. Also mediation offers continuing relations between parties compared to a lawsuit and shows the right way to resolve probable disputes in the future.

Recordability of mediation agreements in public registers:

As mentioned above, according to the law, it is not possible to use the mediation process if the subject of the dispute is against public order or statutory rules of law or involves domestic violence claims. Public registers are included within the boundaries of public order. Therefore, the parties of the dispute cannot make an agreement about this kind of subject.
Although making an agreement is not possible, on the other hand, according to Turkish Law, recording in public registers is possible in cases of:

  1. Request of proprietors,
  2. Request of other relevant persons,
  3. With a court decision.

 

Mediation agreements are not stated among these cases. Unless rules of law allow, the mediation agreement cannot be recorded in public registers.

  1. The Figure of the Mediator

 

Describe the legal status of the mediator:

The Mediation Law does not indicate the legal status of the mediator. According to legal regulations regarding other similar professions specialized in law, the mediator has to be a public officer. The mediation process is also a public service. In any case, the mediator has to be self-employed from a financial point of view.

Please indicate if, under the laws of your State, this status is compatible with other independent professions and in particular the notarial profession?

Yes, the status of the mediator is compatible with the notarial profession and attorneyship profession. Notaries and attorneys are public officers. Both of them are self-employed from a financial point of view.

What are the qualifications and training?

The Mediation Law provides the establishment of a Mediator Registry under the auspices of the Ministry of Justice and a series of qualification criteria to be registered as a mediator:

  1.  being a Turkish citizen,
  2.  having law degree and professional experience for at least five years,
  3.  being fully capable,
  4.  not having criminal records except negligent offenses,
  5.  completing a mandatory course provided by private institutions under the supervision of the Ministry of Justice and passing two exams (written and practical).

The course will include the subjects of:

  1.  Fundamental information about mediation proceedings,
  2.  Techniques of dialogue,
  3.  Negotiations and dispute resolution systems,
  4.  Behavior psychology,
  5.  Other theoretical and practical information. (Article 22)

 

What are the duties and liabilities of the mediator?

Duties:

  1. The mediator conducts process impartially, diligently and personally. (Article 9/1)
  2. In case of any suspicion about impartiality of the mediator, the mediator should inform the parties and behave according to their consents. (Article 9/2)
  3. The mediator provides equality and balance between parties.(Article 9/3)
  4. If the parties cannot reach an agreement and one of them files a lawsuit, the mediator cannot be the attorney of the plaintiff or the defendant.(Article 9/4)
  5. The mediator should obey to the prohibition of advertising.(Article 10)
  6. The mediator explains every stage of the mediation proceedings and the results of mediation to the parties at the beginning. (Article 11)
  7.  The mediator should pay an entrance fee and annual fees. (Article 12)

 

Liabilities:

According to the general principles, mediators have to be;

  1. impartial,
  2. neutral,
  3. independent,
  4. confident,
  5. patient,
  6. calm,
  7. intelligent and
  8. honest.
  1. The notary and mediation

 

What is the role of Professional bodies?

Professional bodies can arrange training programs about mediation. It is important to educate lawyers about the benefits of mediation and teach them how mediation techniques can be used in dispute resolutions.

Professional bodies of Turkish Notaries and Attorneys, the Turkish Notarial Union and the Turkish Bar Association, can cooperate and establish committees in order to promote and provide accessible and effective conflict resolution services including mediation.

In this context, a group of notaries were sent for training to the United States of America in 2001-2003, in order to study on the alternative dispute resolutions of American Law System by the Turkish Notarial Union. Such studies are ongoing with the cooperation of the Universities.
                                                                                                              
How may the notarial profession promote awareness and use of mediation (e.g.in carrying out its role of advising clients, when proposing insertion of clauses in contracts, type of contracts etc.)?

There are two main law systems in the world, common law and civil law. Mediation is a mutual issue for both systems and can be used effectively everywhere in the world.

It is very important to educate professionals who specialized in law, in order to promote awareness of mediation and teach its techniques. It is important to introduce the benefits of mediation to notaries and all other lawyers. This knowledge will give them the ability to advise their clients to include mediation clauses in their agreements and any type of contracts.        

How in your country may recourse be had to the notary following an agreement between parties concluded in the course of the mediation procedures?

Although Turkish notaries are not practitioners yet, if a notary acts as a mediator, surely he/she has to regard the confidentiality and other duties and liabilities. Otherwise he/she will be responsible if any damage occurs upon the parties' rights which are legally protected. In such a case the notary will be held responsible and be faced with providing compensation for the damage along with penalty of imprisonment under Article 33.

Please indicate whether, in your country, the roles of notary and mediator can be combined and describe the rules and Professional regulations he would be subject to.

Yes, the roles of the notary and mediator can be combined. The professional regulations are similar because:

  1. Both of them have to be impartial, neutral and independent when they do their jobs,
  2. Both of them should not judge people,
  3. Both of them have to obey confidentiality,
  4. Both of them are not able to impose their will on people,
  5. Both of them cannot impose people what they have to do,
  6. Both of them have to be lawyers,
  7. Both of them have to have good communication skills and good   relationships with people,
  8. Both of them have to hold no prejudices,
  9. Both of them have to have observation skills,
  10. Both of them have to be patient and calm,
  11. Both of them are subject to the prohibition on advertising.

 

Please indicate if, in your country, there are other possible roles for the notarial profession in this area.

Notaries may have important roles in order to decrease the workload of the courts. Notaries can be mediators and take over some non-contentious jurisdiction matters beside judges.
In this context:

  1. Notaries can prepare non-contentious divorce agreements,
  2. Notaries can give records of previous convictions,
  3. Notaries can prepare statements and records regarding refusals of inheritance,
  4. Notaries can send notifications to the following inheritors about refusals of inheritance,
  5. Notaries can keep official inventories about estates of deceased persons,
  6. Debtors can pay their debts to notaries as places of deposits and notaries can send notifications to the creditors,
  7. Notaries can control and settle defective goods by the mediation of experts,
  8. Notaries can settle capitals in kind for companies by the mediation of experts,
  9. In transportation business, notaries can settle damaged goods by the mediation of adjusters,
  10.  Notaries can make auction sales,
  11.  Notaries can send payment orders with formal notices to debtors. This option may cause a decrease in the workload of executive offices.
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