“Peace is increasingly regarded as the only way to justice”.
This maxim declared by the pope Jean-Paul II, regardless of its religious complexion, is meaningful for mediation as well, which we may refer to as the “peaceful justice”. This quote sounds premonitory with regard to the current growing interest on mediation in different legal systems all over the world.
In an era of boom of exchanges, especially economic interactions, which entails both a qualitative (complexity) and a quantitative (number) of disputes, alternative dispute resolution mechanisms (ADR) seem to be salutary for justice and the rule of law. Indeed, mediation is a parent notion of other mechanisms of ADR such as conciliation, arbitration, negotiation, early neutral evaluation and mini-trials. These mechanisms can be defined in relation to the stump notion of mediation. For instance, “med-arb” is a hybrid notion between arbitration and mediation.
Mediation is permanent reference in legal literature, no matter the nationality of authors. Mediation has already the wind in its sails, within Common Law systems as well as in civil tradition systems. This legal concept of conflict regulation found its modern meaning in the USA in the 70’s. When it was reviewed that the procedures of discovery and cross-examination complicate and overburden the cases, the U.S. procedural system gave birth to mediation per se, where the parties are de jure and de facto encouraged to settle their disputes by reaching an amicable agreement. Nowadays, we can see that mediation conquered legal orders all over the world.
Mediation attracted more and more interest in Europe as of the 80’s. A European arbitration and mediation network was created in 1994, known as the WIPO Arbitration and Mediation Center. The European Community Law also started to promote mediation from the early 00’s and a European Directive on the certain aspects of mediation in civil and commercial matters was adopted in 2008. When we look at the mediation practice in the work; we observe in Latin America that, Argentina implements mandatory mediation in various areas since 1995’s Act, whereas in Asia and Oceania, mandatory mediation is applied in India and Australia and in the Eastern Europe, some countries passed their laws in the early 2000s such as Romania and Greece.
International treaty law is also familiar to the notion of mediation. Norms of International Law evoke, foster and frame the practice of mediation. For example, the United Nations Convention on international Settlement Agreements Resulting from Mediation signed in 2019 in Singapore aims to strengthen the effectiveness of agreements resulting of mediation in commercial disputes. It establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement.
We will focus below on a comparative analysis of mediation under Turkish, German and French Laws, with an aim to determine the convergence and divergence points in respect of mediation. To that end, the normative framework of the mediation as a tool of soft justice will be firstly brought to light in section (I). Thereafter, the mediator systems of Turkey, Germany and France will be at the center of the study (section II). Lastly, we will focus on some criticism on mandatory mediation (section III).
I. Mediation: A Useful Tool of Soft Justice
A. Nature, functioning and goal
The following general remarks on the characters of mediation apply to Turkish, German and French law:
- The nature of mediation is contractual: Mediation is based on the parties’ will, autonomy and liability.
- Mediation is extra-judicial: Parties try to settle out of the court. Though, the judge can in some instances order parties to apply to mediation before the trial. Therefore, in some cases, mediation is not fully emancipated from the supervision of the courts. However, mediation remains an extra-judicial method whereby, parties enter into a dialogue towards amicable resolution.
- Mediation is potentially a pre-jurisdictional stage: If the parties cannot achieve to reach an agreement, they may proceed with the litigation stage. On the contrary, if they arrive at an amicable agreement, the dispute cannot be the subject of legal proceedings afterwards. Mediation does not occur under the aegis of the judge, as (s)he cannot intervene in the mediation process. Nevertheless parties are assisted by a third person, impartial and neutral, who is the mediator.
- Mediation is not contentious: Unlike litigation, that is a war under the patronage of a judge, who will decide who is wrong and who is right, mediation is a way of peaceful justice or soft justice. The purpose of mediation consists in settling the dispute quickly, freely and fairly out of the court by concluding a private contract by common consensus. This precludes indeed the violence of litigation whereupon one of the parties succumbs. Parties who find an amicable arrangement save money, energy and time by avoiding litigation. During a trial, judges rule on a lawsuit in accordance with legal norms, whereas mediation takes into consideration all aspects of the dispute. A mutual and acceptable solution can therefore be tailor-made according to the needs and wills of parties. Mediation pursues not only a purpose on individual level but also on collective scale. Indeed, mediation aims to ease congestion and burden of work on the courts by relieving a large number of cases, so it also benefits the judges.
- Principals governing mediation: The fundamental tenets of mediation are confidentiality, freedom of the parties, equality and rapidity;
- Confidentiality principle leads to a disclosure prohibition for both parties and the mediator. Mediation should be trustful to set a framework favorable for a common solution. Confidentiality is also essential for enterprises, which do not want to sully their reputation in a trial and jeopardize their commercial interest.
- Freedom of the parties means that the outcome of the mediation is up to the parties. They have the choice to conclude an agreement or not, under the conditions they will determine. There is no judge or arbitrator with a decision-making power.
- Equality stands for the fact that each party collaborates and cooperates autonomously on an equal footing towards a mutual solution.
- Finally, the principle of rapidity derives from the reality that the purpose of mediation is to solve a matter in a quick fashion. Mediation is not intended to last for years, an outcome shall be concluded within a few weeks or months, at the very least.
B. Scope and operating methods of mediation
Mediation was first introduced in France via Law n°95-125 on the Organisation of Courts and Civil, Criminal and Administrative Proceedings in 1995. European Community Directive of 2008 (2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters) was then transposed into French Law via Order (ordonnance) n°2011-1540 in 2011. The Order regulates the cross-border and inland mediation rules, with the exception of employment disputes or issues regarding Administrative Law. This Order of 2011 amended the cited Law of 1995 in order to draw a general framework for mediation.
Later, Decree (décret) n°2012-66 of 2012 implementing the abovementioned Order of 2011, inserted a new section into the Code of Civil Procedure on amicable dispute resolution, so as to specify the rules governing mediation, conciliation and amicable settlements.
Under French practice, mediation is applicable in all matters whose parties have free disposal rights. Hence mediation is possible for civil, commercial, familial or consumer disputes. Operating methods obviously vary and depend on the concerned material. For example, mediation in Criminal Law is possible only for infringements of minor nature.
As per French Law, mediation is whether voluntary, mandatory (small claim, neighborhood or consumer dispute) or the judge instructs the parties discretionally. In the first instance, procedure and timetable are free for the parties’ determination. But in the other instances, timetable and duration are determined by the law or the court. Mediation can last at most 3 months and can be repeated once. The judge can terminate mediation at any time on the request of the parties.
The voluntary nature of mediation in France has been weakened via the Decree n°2015-282 of 11 March 2015. In principle, filling a petition before civil court is not possible anymore if the plaintiff has not justified an attempt of amicable resolution.
Mediation was introduced late but resolutely in Turkish legal order. Pursuant to the Code on Mediation in Civil Disputes n°6325 adopted in 2013, mediation is possible on a voluntary basis for civil law disputes, outcomes of which can be settled by agreement. For instance, custody rights, divorce or immovable properties are excluded from the scope of mediation because these matters are within the scope of public order.
After the enactment of the Law on Labor Courts n°7036 in 2017, parties to a wide range of labor dispute are obliged to resort to mediation prior to bringing a lawsuit before the labor courts. Thus, the said law contains a legal obligation to participate in mediation but reaching an actual agreement is up to the parties. If the plaintiff does not initiate mediation first, litigation procedure will be refused on procedural grounds. On the other hand, if the defendant does not attend the mediation without just cause, the defendant will be required to pay all litigation expenses. Mediator has 3 weeks and potentially 1 more for each case, to conclude the process.
Labor disputes account for a large part of civil law cases in Turkey. This compulsory mediation reached a great success in Turkey, as 70% out of roughly 298 000 cases entrusted to mediators in 2018 were settled.
In 2018, the Turkish parliament passed the Law on the Procedure of Initiating Debt Enforcement Proceedings for Payment Claims Under Subscription Agreements n°7155 instituting compulsory mediation for commercial disputes and claims for damages. This legislation is similar to the aforementioned act on labor law disputes; the plaintiff of a commercial dispute is again required to first apply to a mediator before filing a lawsuit and the defendant shall bear the litigation expenses in case of failure to attend. Here, the mediator has 6 weeks (and potentially 2 more due to extraordinary circumstances) to end the mediation. The law n°7155 on commercial disputes applies to 250.000 cases a year.
The fee-shifting mechanism for failure to appear in compulsory mediation is actually stated in the Code on Mediation in Civil Disputes n°6325, which is a general provision covering all disputes subjected to mandatory mediation.
The Turkish law, in spite of a late introduction of mediation, implements a forced march in order to spread the culture of mediation and to provide a remedy for the delay problems of judicial system and its ensuing costs.
On the German side, mediation got a foothold progressively in the legal architecture since 80’s, in order to provide a quicker, cheaper and less unpredictable conflict handling mechanism. German courts were indeed facing an extra-load work and excessive delays. In principle, German law does not contain any general provision compelling parties to try to settle their disputes extra-judicially. Since the reform of Civil Procedure, the German Federates regions (Länder) can set mandatory mediation. It means that the Länder can establish that it is not possible to file a lawsuit if mediation or conciliation does not occur first. Eight Länder decided that for minor cases under 750€, damages claim for offence to honor or neighborhood disputes, parties must try to settle amicably, otherwise the lawsuit petition is inadmissible. The case law seems to subject legal aid to an attempt of mediation or conciliation. The Code of Civil Procedure, at the federal level, requires a mediation hearing before any oral hearing for every First Instance judicial procedure. Labor Law imposes a mandatory attempt to settle the dispute, at the federal level as well. German Family Law is also familiar with mandatory mediation in order to protect the child well-being.
German Law undertakes to spread and encourage mediation, even if it is only possible when the law expressly permits it. The German outlook is therefore different than in France or in Turkey where the principle is the possibility of mediation except for certain matters laid down by the law.
Based on the European Community Directive of 2008 (2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters), the Mediation Act (Gesetz zur Förderung der Mediation und anderer Verfahren der Außergerichtlichen Konfliktbeilegung) entered into force in 2012, in Germany. This was the first legislation in Germany officially regulating mediation. While 2008 EU Directive on Mediation only concerns cross-border commercial disputes, German Law goes beyond this, as the Mediation Act of 2012 governs all mediations regardless of the nature of the dispute or parties’ place of residence.
There is no detailed settlement procedure in the German Mediation Act, giving the mediators and the parties of dispute a free space during the process. However, when federates regions adopt a specific regulation, its provisions shall apply.
C. The outcome of mediation: Quid of the amicable agreement?
The purpose of mediation and its desirable outcome is an amicable agreement concluded by the parties. In this section, we aim to analyze legally this amicable agreement, by which parties settle their dispute and focus on the legal nature of this mutual arrangement along with its legal effects.
Mediation Laws of France, Turkey and Germany are similar in terms of the legal nature of the agreement reached as a result of mediation. Under the laws of each indicated country, the potential agreement is a type of a private contract and once signed, it has the force of a contract and binds parties.
When a party fails to perform its obligations agreed in the agreement, the question of enforceability arises. In accordance with the Turkish Law, both statutes of 2017 and 2018 on labor and commercial disputes stipulate that the settlement is enforceable if both parties themselves and their lawyers sign the document altogether. In the absence of one of the lawyers or if one of the parties is represented through a lawyer and does not sign the agreement along with his/her lawyer, the agreement does not have such “automatically enforceable” effect. In this case, a party desiring to commence legal proceedings based on such agreement must obtain an “annotation of enforceability” on the agreement from the competent Peace Court.
On the contrary, French law stipulates that the agreement has to be approved by a judge or a Notary Public to be enforceable. Under Turkish Law, mediation seems really extra-judicial until a problem arises, emphasizing the will of Turkish law-maker to ease the pressure on courts. Under French Law, on the other hand, mediation and the potentially ensuing agreement are not at any moment completely independent from the legal institutions.
As per German Law, such settlement agreement is not enforceable in the same way as a court award or an arbitral decision. The enforceability of the agreement can be provided through;
– Approval by Notary Public,
– Approval by Court, if the mediation is conducted in parallel as a part of a court case,
– Transfer of the agreement into an arbitral decision,
– Transfer of the agreement into an agreement by the parties’ lawyers to be recorded by the respective court.
II. The Mediator: a crucial go-between
A. Mediator’s role and obligations
Under German, French and Turkish Laws, the role and the obligations of the mediator are alike in certain ways;
– The mediator has to favor the dialogue between parties towards an amicable agreement without any decision-making power.
– The mediator has to ensure the confidentiality within a proceeding and consequently not to disclose any information to third persons.
– Mediator is independent and neutral in fulfilling his/her duty to guide the parties.
B. Mediator’s qualifications and training
German Law regulates the general knowledge and competency that should be followed during the trainings. Any person who meets with these criteria is able to work as a mediator. There is no requirement of having a certain profession, university degree, neither there is an age restriction.
Notwithstanding the above, it can be said that Germany passed a more detailed statute than France in this respect. In France, there is thus far no regulation on the training of mediators or the contents of education. Only in family matters, a family mediator’s diploma (diplôme de médiateur familial) is required which shall be given by approved training centers. Applicants shall attend certain hours of training and practice courses at these centers, which finalizes with an examination.
There are scattered and vague decrees governing the requirements for the mediator in France. For example, the Decree n°2017-1457 issued in 2017 prescribes that a mediator candidate must have a qualification or an experience vouching for the ability to practice mediation. However the scope of this Decree is limited to the mediators at Courts of Appeal. In 2018, the French Supreme Court (“Cour de Cassation”) specified that no degree is required to be placed on the mediator’s list at the Courts of Appeal.
As for Turkey, mediators must meet certain conditions, the most important ones of which are have graduated from Law Faculty and having 5 years’ seniority. Successful completion of mediation trainings and passing the exams held by the Ministry of Justice are also among the conditions. Trainings are provided at schools and private institutions authorized by the Ministry of Justice. Mediators shall also participate in refresher courses once a year.
There is no harmonized mediation training in Turkey currently, so there are plenty of mediation schools profiting from the applicants’ attention. This leads to contrasted quality and disciplinary problems detrimental to the parties and the collectivity. Turkey is about to review the common framework of mediation to fight against these problems.
C. Mediation fees
In Germany, as well as in France, there are no legal regulation specifying mediations fees. In both countries, fees are agreed between the mediator and parties. Parties pay the fees jointly unless otherwise agreed. Usually, hourly fees fluctuate from €80 up to €250.
Under German Law, there is no financial support for mediation except in Family Law matters, whereas consumer and family disputes are financially assisted in France. In Turkish Law, the situation is much more different.
For the cases falling within the scope of Compulsory Mediation, that are the labor and commercial cases, the mediators’ fee is paid by the government if the dispute cannot be settled. In case parties settle the dispute, they pay equally the mediator’s fee, unless otherwise agreed.
The fee cannot be less than two hours’ hourly rate defined in the Mediation Fee Tariff, announced annually.
III. Mandatory Mediation, a legal institution at the heart of justice reforms: issues de lege lata and solutions de lege feranda
The criticism addressed to the mediation in Turkey, France, Germany and in the European Union have arisen in parallel.
After the adoption of mediation on labor disputes In Turkey, certain provisions were challenged on a constitutional basis. It was claimed before Turkish Constitutional Court that the mandatory mediation brings forth injustice, as it puts the employees in a weaker position against the employers, in contrary to the principles of employee protection. It was also challenged that reducing the prescription period for annual leave pay, severance payment, notice pay, bad faith compensation and the compensation arising from the employer’s violation of the equality principle. In consequence of the proceedings, the Constitutional Court ruled that even when the mediation is stipulated as a prerequisite, the obligation of the parties to refer the dispute to a mediator only pertains to the application and the parties’ freewill during and at the end of the process shall stand (Decision numbered 2017/178 E., 2018/82 K. dated July 11, 2018).
This Turkish case law echoes a case brought before the European Court of Justice in 2017. The European judges adjudicated that a national legislation imposing a mandatory mediation as precondition to litigation conforms to European Union ADR framework, because the parties are not prevented from exercising their rights to access to justice.
Some legal practitioners and scholars still heavily criticize mandatory mediation, blaming it to remove the voluntary characteristic of mediation. However, statistical and empirical evidences point the fact that the mandatory or voluntary mediation has no significant impact on the resolution rate. Promoting and implementing mandatory mediation seems to be a relevant way to fight against the slowness and inefficiency of justice in the territories that we have evaluated hereby, namely Turkey, France and Germany.
According to our view, the social impact of mediation is as important as its role of serving the justice. Bringing together the parties in a dispute, even though by the force of law, would surely serve for a more functional business and social life.
Overall, mediation should not be seen as a panacea of all justice problems, but as the means of providing legally applicable solutions via effective communication, with the guidance of a professional and improving the social peace in this manner.
Bahar Nalan Danış, Mediator-Attorney at Law (Turkey)
Louis Trullard, L.L.B. & L.L.M.-Dijon University Law Faculty (France), L.L.M.- Mainz University (Germany)