Union of Turkish Bar Associations

Transcription

1 CIVIL AND COMMERCIAL MEDIATION IN TURKEY International Best Practices and Domestic Developments Union of Turkish Bar Associations Ankara - 13 th March 2009 This Project is funded by the European Commission

2 CIVIL AND COMMERCIAL MEDIATION IN TURKEY International Best Practices and Domestic Developments Union of Turkish Bar Associations Ankara - 13 th March 2009 This Project is funded by the European Commission Prof. Giuseppe De Palo Professor of ADR Law & Practice, Hamline University School of Law (St. Paul - U.S.A.) Chairman of the Board, ADR Center S.p.A. (Rome - Italy)

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5 Technical Assistance for Better Access To Justice in Turkey (EUROPEAID/123555/D/SER/TR Better Access to Justice ) DATE September 2007 April 2009 DONOR European Commission CONTRACTING AUTHORITY VALUE The Central Finance and Contracts Unit (CFCU) 3 SUBJECTS Legal Aid (LA) Information Technology (IT) Alternative Dispute Resolution and Mediation (ADR) The Project is implemented by ADR Center, in cooperation with: 5

6 Project Beneficiaries Ankara Bar Association Union of Turkish Bar Associations Ministry of Justice (Directorate General of Judicial Records and Statistics - DGJRS)

7 The Project Team M. Haluk Saran Team Leader Ferda Paksoy Legal Aid Expert Manon Schonewille ADR Expert Omur Oznur Project Assistant Asiyan Suleymanoglu ADR Project Assistant 7

8 What We Have Done So Far (September 07 March 09) 1. Legal Aid ( LA ) 7 Awareness in LA courses completed; more than 500 lawyers trained in Gaziantep, Tekirdag, Trabzon, Nevsehir, Bursa, Hatay and Manisa One international conference covering also ADR organized in Istanbul on February 13, 2009 Drafted a LA report to be published soon on UTB web site Public Awareness Materials (brochures and posters) finalized and distributed 8

9 What We Have Done So Far (September 07 March 09) 2. Information Technology ( IT ) 8 IT courses completed One Study Visit organized in The Netherlands and Luxembourg in October 2008 with the participation of 9 DGJRS judges and the Team Leader Organizations visited: EUROSTAT Central Bureau of Statistics (CBS) Council for the Judiciary (de Rechtspraak) 9

10 What We Have Done So Far (September 07 March 09) 3. Alternative Dispute Resolution ( ADR ) 3 ADR courses completed from October to February in Ankara, Mersin and Istanbul for a total of 360 people trained One international conference covering also LA organized in Istanbul, on February 13, 2009 ADR Study Visit organized in The Netherlands in February 2009 for 10 MoJ judges and 2 ABA lawyers ADR Demo CDs distributed posters prepared and disseminated Today s conference 10

11 What We Have Still To Do (March April 09) 1 LA course in Ankara 1 ADR course (to be held tomorrow in Ankara) A Nationwide Survey to measure the impact of the Project 11

12 CIVIL AND COMMERCIAL MEDIATION IN TURKEY International Best Practices and Domestic Developments Union of Turkish Bars Ankara - 13 th March 2009 This Project is funded by the European Commission

13 Mediation? - Timeless universality, but - not frequently practiced 13

14 Dispute Resolution: The Fundamental Choice Non-Binding Binding Negotiation Arbitration Litigation 14

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16 Litigation explosion/crisis? 16

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18 Friedrich August von Hayek (Vienna, 1899 Freiburg, 1992) 18

19 And The New Choices Dispute Resolution: The Old Choice Negotiation Non-Binding Facilitative Mediation Binding Litigation Private Judging Evaluative Mediation Neutral Evaluation Arbitration Negotiation Arbitration Litigation Final Offer Arbitration Settlement Conference Bracketed Arbitration Mini-Trial Summary Jury Trial Maximum Process/Outcome Control Minimum Process/Outcome Control 19

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22 ADR Dimensions and Actions (part 1) Justice as a superior good Two main ways to promote ADR: 1) putting it on the legal map (Example: DIRECTIVE 2008/52/EC of The European Parliament and of the Council of 21 May 2008) 22

23 Mediation Legislation in EU Countries -- Some Examples No general statute: The Netherlands Some statutory rules: UK (Civil Procedure Rules, 1999) Full statute: - Austria (Law on Mediation in Civil Cases, 2003) - Belgium (Law on Mediation, 2005) - France (Law No , 1995) 23

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27 ADR Dimensions and Actions (part 2) What are we putting on the legal map? Private (Non Court-Annexed) Public (Court-Annexed) 27

28 Federal Courts (Fiscal Year 2007)* Type of ADR Process Authorized No. of Districts Arbitration 28 Mediation 63 Early neutral evaluation 23 Mini-trial 13 Settlement week 2 Summary jury trial 27 Settlement conferences 53 *Donna Stienstra, Federal Judicial Center, Washington, DC 28

29 Number of Cases Referred to ADR in 49 Federal District Courts (Fiscal Year 2007)* ADR Process No. of Cases Referred Mediation Arbitration Ca-N multi-option program Settlement conferences Early neutral evaluation 961 Settlement week 250 Summary trials 4 Mini-trials 23 Other 158 Total 20% of all federal litigation *Donna Stienstra, Federal Judicial Center, Washington, DC

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31 CIVIL AND COMMERCIAL MEDIATION IN TURKEY International Best Practices and Domestic Developments Union of Turkish Bars Ankara - 13 th March 2009 This Project is funded by the European Commission

32 Some Features of The Turkish Draft Law on Mediation in Civil Disputes Is It Enough? Scope: civil disputes arising from business and transactions which are at the complete disposal of the parties Definition of mediator: a person who carries out the mediation process and is registered in Mediators' register kept by Ministry of Justice Initiation: the parties may initiate the process before or throughout the duration of the civil trial. The Court may suggest /encourage the parties to resort to mediation Non binding process: the parties are free to resort to a mediator, continue and conclude, or withdraw from, the process Enforceability: the agreement might be made enforceable through the application of the parties to the competent court 32

33 Civil And Commercial Mediation in Turkey Irreconcilable Issues in Regulating Mediation 1. Voluntary attempt Mandatory attempt 2. Flexible procedure Rigid procedure 3. Mediator accreditation standard Mediator accreditation standard set by public set by the market regulation 4. No sanctions for refusal to mediate (in the absence of a contract clause Some sanctions or statutory obligation) 5. Mediation body might have The structure of mediation body determined different legal forms and can be an by law 6. individual Proposals exchanged are irrelevant Proposals exchanged are relevant in in subsequent proceedings subsequent proceedings 7. Mediation fees are freely contracted Mediation fees are fixed (and might be high) 8. Mediator does not have to be a Mediator has to be a legal professional (or at lawyer least a University graduate) 9. Outside counsel presence not Outside counsel presence necessary necessary 10. Mediated settlement = contract Mediated settlement = enforceable title 33

34 Private ADR 1. Voluntary attempt 2. Flexible procedure 3. Mediator accreditation standard set by the market 4. No sanctions for refusal to mediate (in the absence of a contract clause or statutory obligation) 5. Mediation body might have different legal forms and can be an individual 6. Proposals exchanged are irrelevant in subsequent proceedings 7. Mediation fees are freely contracted (and might be high) Civil And Commercial Mediation in Turkey Irreconcilable Issues in Regulating Mediation Mandatory attempt Rigid procedure Public ADR Mediator accreditation standard set by public regulation Some sanctions The structure of mediation body determined by law Proposals exchanged are relevant in subsequent proceedings Mediation fees are fixed 8. Mediator does not have to be a lawyer 9. Outside counsel presence not necessary 10. Mediated settlement = contract Mediator has to be a legal professional (or at least a University graduate) Outside counsel presence necessary Mediated settlement = enforceable title 34

35 1. Voluntary attempt 2. Flexible procedure 3. Mediator accreditation standard set by the market 4. No sanctions for refusal to mediate (in the absence of a contract clause or statutory obligation) 5. Mediation body might have different legal forms and can be an individual 6. Proposals exchanged are irrelevant in subsequent proceedings 7. Mediation fees are freely contracted (and might be high) 8. Mediator does not have to be a lawyer 9. Outside counsel presence not necessary 10. Mediated settlement = contract Civil And Commercial Mediation in Turkey Irreconcilable Issues in Mediation (the Italian Solution) Mandatory attempt Rigid procedure Mediator accreditation standard set by public Regulation Some sanctions The structure of mediation body determined by law Proposals exchanged are relevant in subsequent proceedings Mediation fees are fixed Mediator has to be a legal professional (or at least a University graduate) Outside counsel presence necessary Mediated settlement = enforceable title 35

36 1. Voluntary attempt 2. Flexible procedure 3. Mediator accreditation standard set by the market 4. No sanctions for refusal to mediate (in the absence of a contract clause or statutory obligation) 5. Mediation body might have different legal forms and can be an individual 6. Proposals exchanged are irrelevant in subsequent proceedings 7. Mediation fees are freely contracted (and might be high) 8. Mediator does not have to be a lawyer 9. Outside counsel presence not necessary 10. Mediated settlement = contract Civil And Commercial Mediation in Turkey Irreconcilable Issues in Mediation (the Austrian Solution) Mandatory attempt Rigid procedure Mediator accreditation standard set by public Regulation Some sanctions The structure of mediation body determined by law Proposals exchanged are relevant in subsequent proceedings Mediation fees are fixed Mediator has to be a legal professional (or at least a University graduate) Outside counsel presence necessary Mediated settlement = enforceable title 36

37 1. Voluntary attempt 2. Flexible procedure 3. Mediator accreditation standard set by the market 4. No sanctions for refusal to mediate (in the absence of a contract clause or statutory obligation) 5. Mediation body might have different legal forms and can be an individual 6. Proposals exchanged are irrelevant in subsequent proceedings 7. Mediation fees are freely contracted (and might be high) 8. Mediator does not have to be a lawyer 9. Outside counsel presence not necessary 10. Mediated settlement = contract Civil And Commercial Mediation in Turkey Irreconcilable Issues in Mediation (the UK Solution) Mandatory attempt Rigid procedure Mediator accreditation standard set by public Regulation Some Sanctions The structure of mediation body determined by law Proposals exchanged are relevant in subsequent proceedings Mediation fees are fixed Mediator has to be a legal professional (or at least a University graduate) Outside counsel presence necessary Mediated settlement = enforceable title 37

38 Irreconcilable Issues in Mediation (the Dutch Solution) 1. Voluntary attempt 2. Flexible procedure 3. Mediator accreditation standard set by the market 4. No sanctions for refusal to mediate (in the absence of a contract clause or statutory obligation) 5. Mediation body might have different legal forms and can be an individual 6. Proposals exchanged are irrelevant in subsequent proceedings 7. Mediation fees are freely contracted (and might be high) 8. Mediator does not have to be a lawyer 9. Outside counsel presence not necessary 10. Mediated settlement = contract Mandatory attempt Rigid procedure Mediator accreditation standard set by public Regulation Some sanctions The structure of mediation body determined by law Proposals exchanged are relevant in subsequent proceedings Mediation fees are fixed Mediator has to be a legal professional (or at least a University graduate) Outside counsel presence necessary Mediated settlement = enforceable title 38

39 Thank You! Teşekkür ederim! Conference Organizing Committee Filiz Conway and Musa Toprak (Union of Turkish Bar Associations) Kemal Ergun (Ankara Bar Association ADR Center) Flavia Orecchini and Elena Ciancio (ADR Center) Ömur Özonur (Project Assistant) and Aşiyan Süleymanoglu (ADR Project Assistant) 39

40 CIVIL AND COMMERCIAL MEDIATION IN TURKEY International Best Practices and Domestic Developments Union of Turkish Bars Ankara - 13 th March 2009 This Project is funded by the European Commission 40

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42 Next: the U.S. Mediation Regulatory System (diagram)

43 U.S. National Mediation Regulatory Scheme

44 Detail Diagram: Regulation in Texas

45 U.S. Mediation Regulatory System (with apologies to Jackson Pollock and Willem de Kooning) One Federal Government But also 50 State Governments Many of which have different rules for different kinds of case. And so does the federal government.

46 Example 1: State Mediator Qualifications 1 Wisconsin No state requirements for the practice of mediation. (The only statewide mediation program is the Medical Mediation Panel. Medical malpractice cases are required by statute to be mediated by a three person panel consisting of an attorney, a doctor, and one of a list of lay persons appointed by the governor. No mediation training or experience is required.) 1 Source: Institute of Government, University of Arkansas

47 Example 2: State Mediator Qualifications South Carolina No state requirements for the practice of mediation. Civil actions filed in the circuit court for more than $25,000 and custody or visitation in domestic relations actions, with some exceptions, are subject to mediation. Parties may choose any mediator. Where parties fail to find a mediator of their own choosing, the court will appoint a mediator who has been certified by the Board of Arbitration and Mediator Certification. The Board of Arbitration and Mediator Certification certifies mediators to be eligible for court appointments. Qualifications for Circuit Court Mediation are: 1) be admitted to practice law in SC for at least 3 years, be a member in good standing of the SC Bar, and has not within 5 years been disbarred or suspended from practice of law or publicly reprimanded; or be admitted to practice law in the highest court of another state or the DC for 3 years, and have received JD from approved law school, and be a member in good standing in each jurisdiction where admitted, and has not been disbarred or suspended from practice of law or publicly reprimanded, and be an associate member of the SC Bar in good standing, and agree to be subject to the Rules of Professional Conduct; 2) 40 hours approved civil mediation training; 3) demonstrated familiarity with SC mediated settlement conferences; 4) be at least 21 years of age; 5) be of good moral character; and 6) agree to provide mediation to indigents without pay. Qualifications for Family Court Mediation are: 1) be a member in good standing of the SC Bar; or be admitted to practice law in the highest court of another state or the District of Columbia, have received a JD from an approved law school, be a member in good standing in each jurisdiction where admitted, have not been disbarred or suspended from the practice of law or publicly reprimanded, be an associate member of the SC Bar in good standing, and agree to be subject to the Rules of Professional Conduct; or be a licensed psychologist, licensed master social worker, licensed professional counselor, licensed marital and family therapist, or a licensed physician specializing in psychiatry; 2) 40 hours approved family court mediation training; 3) demonstration of familiarity with SC mediated settlement conferences; 4) be at least 21 years of age; 5) be of good moral character; 6) has not, within last 5 years, been denied a professional license or disciplined; and 7) agree to provide mediation to indigents without pay.

48 Is there any consistency? Yes (some!) The more voluntary the mediation process is, the less the US federal or state governments will generally) regulate how it is done, or by whom The most regulated kinds of mediation are those where third parties are strongly affected, particularly children.

49 (Thank you)