Comparative Analysis of Mediation in Turkey, United States and in European Countries - Av. Lider Tanrıkulu

Abstract

The aim of this research is to compare newly established mediation institution of Turkish Republic to the other early mediation introduced states around the globe. Throughout the governmental efforts to institutionalize mediation are meant to strengthen the relationship between citizens and the government as well as introduce dialogue culture to its citizens. Observations suggest that some states present the mediation option to ease the caseload at the courts and financial burden of the court process on people. Findings of the research demonstrate that, Turkey was also on the same track with above mentioned situation and since 2018 with the introduction of mandatory mediation, awareness of the citizens of Turkey increased drastically. To conclude; the framework for mediation should be created in accordance with Turkish law’s requirements, at the same time respecting the mediation institution’s core values. By doing so, Turkish citizens will benefit full advantages of mediation services. 

Keywords: Mediation, Mandatory Mediation, Turkish Law, Citizens, Caseload, Court Process.

TÜRKİYE, AMERİKA BİRLEŞİK DEVLETLERİ VE AVRUPA ÜLKELERİNDE ARABULUCULUĞUN KARŞILAŞTIRMALI ANALİZİ

Öz 

Bu araştırmanın amacı, Türkiye Cumhuriyeti’nde yeni kurulan arabuluculuk kurumunu dünya genelinde arabuluculuğa erken başlayan diğer devletlerle karşılaştırmaktır. Devletlerin arabuluculuğu kurumsallaştırma çabaları, vatandaşlar ile devlet arasındaki ilişkiyi güçlendirmeyi ve vatandaşlarına diyalog kültürünü tanıtmayı amaçlamaktadır. Gözlemler, bazı devletlerin mahkemelerdeki dava yükünü ve mahkeme sürecinin insanlar üzerindeki mali yükünü hafifletmek için arabuluculuk seçeneğini sunduğunu göstermektedir. Araştırmanın bulguları, Türkiye’nin de yukarıda belirtilen durumla aynı yolda olduğunu ve 2018’den bu yana zorunlu arabuluculuğun getirilmesiyle birlikte Türkiye vatandaşlarının farkındalığının büyük ölçüde arttığını göstermektedir. Sonuç olarak; arabuluculuk için çerçeve, Türk hukukunun gerekliliklerine uygun olarak ve aynı zamanda arabuluculuk kurumunun temel değerlerine saygı gösterilerek oluşturulmalıdır. Bu şekilde, Türk vatandaşları arabuluculuk hizmetlerinin tüm avantajlarından yararlanacaktır.

Anahtar Kelimeler: Arabuluculuk, Zorunlu Arabuluculuk, Türk Hukuku, Vatandaşlar, Dava Yükü, Mahkeme Süreci.

Extended Abstract

In Roman Judicial System, compromise (transactio) could be resorted to in every process, as it has been emphasized, there was no difference between compromise before the magistra, before the determination of the case in the private judicial system and compromise between the parties before the lawsuit was filed.(1) Roman law underwent changes in different periods, some of the reasons for this were the attempt to centralize it, the freedom of jurists (judges and magistrates) in certain matters, and the introduction of Christianity into the empire. Due to the uncertainties that emerged in the Post-Classical Legal Period, the compromise contract, which provided the right to sue for the first time in this period, enabled the compromise of disputes peacefully with the influence of Christianity. The reason why the compromise agreement was used more frequently in the Post-Classical Law Period was the lack of trust in the courts in an environment of legal uncertainty and the desire of the parties to resolve the dispute themselves. In addition to these, in accordance with the ethical understanding of the Christian religion, the parties wanted to resolve their disputes peacefully among themselves.

In Roman Procedural Law as each procedure had been practiced with the previous one for a long period of time, as the benefits of the new procedure gained weight, the old procedure was first de facto and then de jure abolished. In this unstable and uncertain legal environment people losing trust to their courts can be seen as a lack of political tolerance where negative emotions are predominant.(2) Nowadays, democratic states across the globe separates politics from its judicial systems and on the search for an active people participation in social and political infrastructures open windows of opportunities like introduction of ADR (Alternative Dispute Resolution) to its legal practices. 

The institutionalization of mediation in Turkey’s legal practices started with the introduction of the Law No. 6325 on Mediation in Civil Disputes on 22.06.2012. The indicated reason for the introduction of the mediation was shown as caseloads on the courts as well as costs and delays. As a recently and poorly established institution, sometimes mediation process stumbles on the way to earn full recognition by citizens of Turkey. Nevertheless, mediation in Turkey got some popularity by the implementation of mediation as a prerequisite with the Law No. 7036 on 01.01.2018. The legal mediation services in the US, Italy, UK, Germany, Ireland, Scotland, and Turkey are compared in this research along with several noteworthy features of the Israeli legal system. It is rational decision to mention that through the limited time Turkey gained vast amount of success by recognizing the importance of people participation in legal activities. 

INTRODUCTION

Conflicts are a normal aspect of life. They appear at all societal levels. They are the driving force behind societal growth, challenging preconceived notions and putting to the test both a society’s and an individual’s capacity to deal with opposing views, interests, demands, and trends.(3) As Lampl-de Groot (1961) notes, “Every creature experience clashes with its environment which it has to encounter in order to preserve its own existence. In the highly differentiated and complicated structure of the human mind conflict not only originate from an encounter with the environment, but to a great extent they take place between internal sub-area”.(4)

The alternative dispute resolution method of mediation involves the involvement of a third party who has received specialized training in this area and resolves the dispute by bringing the parties to the dispute together to talk and negotiate, facilitates communication between them to resolve the dispute, acts independently, impartially, and objectively. In mediation, the parties come together with the guidance of a third party who is independent, impartial, and objective and who has received specialized training for the resolution of the dispute, communicate to talk and negotiate, and try to resolve the dispute themselves by understanding each other as a result of confidential negotiations. The dispute must not be related to public order and the parties must be free to dispose of it.

There are undoubtedly a lot of advantages to compromising. It enables the resolution of a conflict, averts additional expenses, and, in Easterbrook’s words, “leaves both sides in a better situation” (compared to court proceedings). Shane & Shane saw compromise as a necessary component of the judicial system’s efforts to improve productivity, lessen its workload, and prevent delays in the administration of justice. Additionally, compromise has “educational and social,” as noted by Turkel, ramifications since it lessens conflict by and within society rather than via legal action in a court. Therefore, it is understandable that “the court also sees compromise reached by agreement as a suitable and even a desirable legal resolution” according to Ben-Noon and Gabrieli. This would appear to be the justices’ viewpoint. (5) Furthermore, numerous studies demonstrate that cases addressed through mediation have a greater settlement rate than those addressed through other means.

But finding a compromise has a price. The weaker party may first be pressured into a settlement because they lack the financial means to pursue further legal action. Such a result is normatively undesirable since it deprives weaker parties of their day in court and a fair opportunity to present their case. As the compromise may be regarded as strengthening power relations rather than bringing forth justice, this might potentially undermine the credibility of the court.

The emphasized may give the impression that negotiations between the parties to a dispute take place without the court’s complete or partial permission. However, Mnookin and Kornhauser proved that throughout the negotiating process, the parties’ concerns are significantly impacted by the legal framework or by the prospective alternatives they would face which was reflected on an article about divorce settlements. Therefore, the effort to find a compromise in a judicial procedure is often carried out “under the shadow of the law,” according to these experts.”(6)

There are multiple benefits to mediation since it is less constrained by procedural rules, substantive law, and the presumptions or norms that predominate the adversarial process. The mediator will assist the parties in putting their needs, interests, and other considerations ahead of any substantive law or standards of proof.(7) The Israeli legal system, including the Supreme Court, has adopted the practice of encouraging parties to search for a solution, even within the courtroom as the trial is being held, according to Justice Shlomo Levin’s book To Be a Judge.(8)

Like to many other countries, dissatisfaction with the quality of the jurisdiction and the rising volume of lawsuits appears to have been a major factor in the adoption of alternative dispute resolution techniques. Furthermore, some countries fail on the way to advertise the new way of settling disputes to its citizens with various reasons and more importantly by assuming that if mediation is made mandatory then it violates the true spirit (fundamentals) of mediation. On the next chapter it is examined with the statistics provided by United States and Turkey. In Turkey, among the disputes that call for mandatory mediation attempts are: 

  • Labor law
  • Commercial law 
  • Consumer law

1. MANDATORY MEDIATION 

The U.S. Model Standards of Conduct for Mediators state that mediation is a procedure that emphasizes voluntary decision-making and places a strong emphasis on self-determination as a guiding concept.(9) 

On October 12, 2017, Law No.7036 introduced mediation as a condition of litigation in labor disagreements on Turkish territories. Until this law, there was no court-related mandatory mediation in case of any legal dispute. Atty. Yilmaz Ağırnas mentioned in his work that “The institution of mediation as a prerequisite for litigation was introduced to our law for the first time with the Labor Courts Law No. 7036. After the provisions of Law No. 7036 on mediation entered into force on 1/1/2018, it has been stated in practice and doctrine that it would be beneficial to apply this method in other disagreements, considering the success it has achieved in the resolution of labor disagreements…”(10) Upon reviewing the existing mediation provisions in Turkish law, it is observed that the application to mediation is regulated as voluntarily for some disputes and as a prerequisite of litigation for the rest. As for the disputes that are stipulated as a prerequisite for litigation, mediation is stipulated as a prerequisite for litigation only in terms of application. The aim of mediation as a prerequisite for litigation is to encourage the implementation of mediation and to introduce a culture of dialogue. Regardless of how the situation of non-agreement arises, the greatest effect of the termination of the mediation activity due to failure to reach an agreement on the civil procedural law is that the parties have fulfilled the mediation activity, which is a prerequisite for litigation. This is documented by the final report. The plaintiff is obliged to attach the original or a copy approved by the mediator of the final minutes stating that no agreement was reached at the end of the mediation activity to the lawsuit petition. In case of failure to comply with this obligation, the court shall send an invitation to the plaintiff with the warning that the final report must be submitted to the court within one week, otherwise the lawsuit will be dismissed procedurally. If the requirement of the notice is not fulfilled, the lawsuit shall be dismissed procedurally without serving the lawsuit petition to the other party. If it is understood that the lawsuit has been filed without applying to the mediator, the lawsuit shall be dismissed procedurally due to the absence of a prerequisite for the lawsuit without taking any action.(11)

Some studies in various countries (e.g., United States of America and Italy) show that the settlement rate is much higher in a mandatory mediation framework.(12) Further, there seems to be a growing interest among countries in invoking presumptive mediation or mandatory mediation with an opt-out clause to give mediation the thrust that it needs as an effective dispute resolution mechanism. 

As much as proponents favor mandatory recourse to mediation, there is an equal number of voices that are opposed to it. To opposed voices, the idea of mandatory mediation is against the fundamental principles; the above-mentioned people argue that coercing parties into mediation could result in a settlement against their will. Further, where the parties’ balance of power is disproportionate, the mandatory nature of the process could result in such difference in their positions being exacerbated.

Additionally, this school of thought argues that mandatory mediation prevents equal access to justice since some issues would be better resolved via litigation than a coerced settlement and because the ability to access the courts is a fundamental right of all individuals. Additionally, history demonstrates that mandatory mediation in nations with low levels of understanding about mediation ends up being a waste of public money and a pointless formality.

The Law No. 7036 on Labor Courts says that mandatory mediation is required, defying arguments that it violates the Constitution’s fundamental rights, adds costs and burdens to peoples’ efforts to pursue their rights, creates a new barrier, and is in conflict with the spirit of mediation. It is stated that the voluntariness of mediation is reflected in the initial and limited stages of application, participation in the process, and termination, that there is no barrier to the judicial remedy in the event the process cannot be completed within a specific amount of time, and that the State will cover the costs of mediation.(13) 

According to the official website of the Turkish Ministry of Justice, the data gathered on various Court settlements reached between disputants by implementing mandatory mediation demonstrates success.(14) The gathered data between 2018-2022 presents 2,115,760 mediation cases that undergone mandatory mediation with a success rate of 52% on mandatory mediation. The majority of the cases submitted for the mandatory mediation—1,481,761 cases and a 58% success rate—involve labor issues. Other success contributing element on mediation is the statistics of voluntary mediation which has a settlement rate of 99% by proving the fundamental nature of mediation and parties’ willingness to come to a settlement. With the exception of voluntary mediation, the comparison between the data given above and California Central District Court is possible. According to the 2018 Report as well as statistics collected for the years after the report’s first publication, court-annexed mediation programs are extremely effective, frequently resolving 50% to 60% of cases mediated.(15) The figure bellow shows the list following the data provided by the official website of the Turkish Ministry of Justice.

Mediation Statistics in Turkey
Disputes Total case numbers Success rate (%)
Labor  1,481,761 58
Commercial  483,702 52
Consumer  150,297 52

Having said that, Turkey might have adhered to the fundamental idea of making mediation voluntary by following the example of nations that did not choose to make it mandatory. For instance, states like Ireland(16) and Scotland(17) have made it mandatory that a client be informed of mediation by the legal community before filing a lawsuit. The attorneys and judges must inform the court to this effect prior to filing a case. Even if this cannot be viewed as a solution to all the issues that may arise, the involvement of the legal community, which would be essential to the mediation framework’s success, would be addressed.

The strongest argument for mandating mediation is arguably the necessity to raise public awareness of and use for these services. Implementing what seems to be a puzzling contradiction in principles may not be the best course of action. However, as Professor Sander has pointed out, mandatory mediation is required as a temporary measure since people do not want to undergo mediation; as a result, they should be given the chance to profit from mediation. In this regard, a critic claimed that “mandatory mediation might have been appropriate in the United States as a remedial measure to get the ADR ball rolling in the 1970s and 1980s, and that court compulsion is no longer needed since the ADR movement in the United States is more mature.”(18) Thus, it is said, court-mandated mediation should only be used as a temporary solution in countries where it is substantially less widespread, and it should be abandoned as soon as society’s awareness of mediation reaches a respectable level. 

A clear political mandate for the establishment of extrajudicial processes to advance the European Union as such an area was granted by the European Council meeting in Tampere in 1999 on the creation of an area of freedom, security, and justice in the European Union.(19) The European Union approved Directive 2008/52 in 2008 upon seeing the need for enhanced mediation in the various European judicial systems. To investigate the application of Directive 2008/52, the European Parliament commissioned the Rebooting Study in 2013. Only four EU members reported mediating more than 10,000 instances per year by the end of 2013, with numerous others reporting fewer than 500. However, Italy was carrying out some 200,000 mediations annually. The results did not vary as a result of more experienced mediators, better confidentiality laws, or other mediation-related incentives. Furthermore, it was not a lack of advertising. The biggest difference was that in Italy, several disputes mandated mediation before a lawsuit could be filed. Instead of the voluntary opt-in model often used in other jurisdictions, Italy developed a mandatory opt-out program.

Genn argues if enhancing the use of mediators while reducing court waiting lines should be a government policy.(20) Her key finding is that: “there is an interdependency between courts as ‘publicisers’ of rules backed by coercive power, and the practice of ADR and settlement more generally. Without the background threat of coercion, disputing parties cannot be brought to the negotiating table. Mediation without the credible threat of judicial determination is the sound of one hand clapping. A well-functioning civil justice system should offer a choice of dispute resolution methods.” And she continues: “We need modern, efficient civil courts with appropriate procedures that offer affordable processes for those who would choose judicial determination. This is not impossible. But it requires recognition of the social and economic value of civil justice, an acknowledgement that some cases need to be adjudicated, and a vision for reform that addresses perceived shortcomings rather than simply driving cases away.”(21)

2. EUROPE AND UNITED STATES OF AMERICA 

Every year, millions of civil litigation cases are filed all around the world. More than 15 million civil cases are reportedly filed in civil courts alone each year in the United States. The US District Courts also receive over 300,000 civil matters each year. More than 1.2 million civil lawsuits, including those involving family law, juvenile law, and probate, were filed in California state court alone in 2017. In 2018, there were more than 2 million civil cases filed in the United Kingdom. More than 4 million civil cases were filed in Italy in 2014. The role of mediation in addressing these and the myriad of other problems with the world’s present judicial systems should be greater than it is today.(22)

In the last thirty years, mediation has established itself as a very effective method for resolving conflicts in both European countries and United States. In contrast to other alternative dispute resolution techniques, mediation is unique in that it involves one or more professionally trained mediators who actively assist the disputing parties in settling their differences by voluntary agreement. 

Unfortunately, it should be admitted that mediation is not yet a widely used method of settling disputes with its potential benefits on Turkish soil, despite the fact that many other nations’ experiences have shown it to be highly beneficial in doing so. In addition to taking into account the mediation laws of the Green Book about Alternative Procedures Concerning Resolution of Disputes in Private Law, Austrian Federal Law Concerning Mediation in Legal Disputes, Germany’s Bavaria’s Law on Compulsory Alternative Dispute Resolution in Private Law, as well as of Hungary, Bulgaria, and Slovakia, the Turkish Draft Law on Mediation in Civil Disputes has implemented the European Directive on Mediation (2008).(23)

In some countries, various methods are used to encourage mediation. For example, in some European countries, the mediation fee for some disputes is covered by the state. In some countries, mediation is free of charge up to a certain number of hours per year. The situation in some countries with different legal systems regarding the determination and payment of mediation fees can be summarized as follows: In the UK, there is no specific regulation on mediation fees. The fee is considered as a matter concerning the parties and the parties generally share the fee equally. In some disputes, mediation fees are paid by the state. In Germany, mediation fees are subject to the Attorneys’ Fees Tariff if they are paid by lawyers. In practice, the mediation fee varies according to the subject matter of the dispute. The mediation fee, which is usually determined by the hour, is high for commercial and other disputes and low for family disputes.(24) On the context of mediation fee, Turkish law has remarkable stance by determining the fee accordance to the success of the mediation activity. In cases where the subject matter of the dispute can be measured in money, a mediation fee of 6% of the settlement amount and decreasing rates according to the amount is paid. Since mediation is a flexible process that the parties agree at the end of the mediation activity, the mediation fee shall be paid equally by the parties, unless otherwise agreed according to the second part of the Mediation Fee Tariff annexed to the Mediation Minimum Fee Tariff. In this case, the fee cannot be less than the two-hour fee determined in the First Part of the Tariff. In situations where the parties cannot be reached at the end of the mediation activity, no meeting can be held because the parties refuse to attend, or the parties cannot reach a settlement at the conclusion of mediation lasting less than two hours, the two-hour fee amount shall be paid from the Ministry of Justice’s budget in accordance with the First Part of the Tariff.(25)

Finally, certain agencies and businesses in the United States have policies stating that if the less powerful party to a dispute seeks mediation, the other party must participate—especially in cases where there is a power imbalance. In other words, the mediation procedure is voluntary for the side with less power but mandatory for the party with power. For instance, the United States Postal Service (USPS) has a mediation program to settle workplace conflicts. The USPS requires the supervisor to attend if an employee seeks mediation to reach a settlement with that supervisor.(26)

Both countries (USA and Turkey) have premised their mediation laws on the need to relieve the negative effects of high caseloads on the courts. The United States laws specifically reference high costs and delays, and that ADR can solve these problems. It needs to be stressed that each country depending on its needs and their specific and unique circumstances should modify mediation process and by doing so may increase awareness among legal practitioners and litigants. This might be important to change Turkish culture’s attitude toward mediation, for example, by getting rid of the belief that seeking mediation makes your case or legal position weaker. Additionally, Turkey may need to start thinking about mediation as a process rather than as an hourly event.

3. CONCLUSION

According to the results of the research, mediation is a process that enables the parties to come up with a mutually beneficial solution on a voluntary basis with the help of an impartial third-party mediator. Because the mediator does not make a decision about the disagreement, mediation differs from the usual resolution of disputes in court or arbitration. Only the disputing parties have the power to make binding decisions, and they work with the mediator to generate, weigh, and select the best possibilities. In its widest meaning, mediation is the process of coming to an agreement in a disagreement that is advantageous to both parties.

In Turkey’s recently established mandatory mediation meetings, lawyers conduct themselves during mediation as if it were litigation, turning it into a confrontational settlement meeting. Legislators and courts have enacted and implemented a limited form of mediation because they are not especially interested in its intangible advantages, such as creative solutions and party empowerment. Parallel to this, many complaints arriving to head of department of mediation concerning Turkish mediators concluding meetings in a very short time by teleconference method in the direction of non-agreement and failing to carry out the mediation processes with the necessary care and sensitivity.(27) Another reason for the limited success of the mediation process in Turkey is the counter-attorney fee (losing side pays all the fees)  allocated to lawyers at the end of the case. According to Law No. 1136, the prevailing party pays a fee to the opposing lawyer according to the Minimum Fee Tariff. This fee is not defined in the mediation agreements. Since the attorney of the party applying to the mediator will be deprived of this fee, it negatively affects the mediation process. In many cases, it has been observed that the counter-attorney fee was requested within the agreement fee, but this was also met with the reaction of the other party.

A comparative insight arises from this: Countries that institutionalize mediation via the courts should expect significant co-option of mediation by adversarial values. Furthermore, such countries should take care to minimize the extent to which governmental goals further threaten the benefits offered by mediation. The extent to which these adversarial values and governmental goals are shared by (or provide benefits to) citizens forced to mediate could vary widely and it is this that compromises the integrity of the process. Accordingly, legislatures considering the passage of mandatory mediation laws or considering what type of mediation laws to adopt should think critically about their vision for dispute processing and whether that vision accords with disputants’ interests and, more generally, their countries’ fundamental concepts of justice. Assuming a well-founded and coherent vision for dispute processing, attention must be paid to the potential for divergence between the operation of mediation laws and the ends those laws were intended to achieve.

Even though mediation is mandatory in Turkey, disputants are often unaware of this requirement. This may be due to the fact that they lack the relevant legal knowledge. Legal aid should be available for parties in the initial stages of their dispute to be informed about mandatory mediation and its benefits. However, even if legal aid is available, lawyers may not inform parties well enough. In order to make sure that lawyers inform their clients well, it seems that they should have an interest in mediation. Involvement in mediation and the possibility of charging a fee for their services may help lawyers to have a positive attitude towards mediation. In Italy, for example, the attitude of lawyers towards mandatory mediation changed dramatically when it was provided by law that mediation without the assistance of a lawyer is not allowed.(28) 

Another point of view can be provided on the ‘specialization of a mediator’, in other words ‘who can be a mediator? In Turkey, only law school graduates with at least five years of professional experience can act as mediators. In order to become a mediator registered in the registry of the Ministry of Justice, at least forty-eight hours of theoretical and practical training must be received from training institutions licensed by the ministry. After the training, those who pass the written and practical exam opened by the ministry and are registered in the registry gain the title of mediator. The regulation that emphasizes “only law school graduates can be mediators” and implies that only lawyers are qualified for this post should be removed, in my personal opinion. In particular, the future regulations surrounding divorce cases that proceed to mediation will lead to a great deal of concern and mistrust toward this institution by allowing lawyers switch from acting as mediators to acting as attorneys during sessions. Mediation needs to take place before a qualified and accredited mediator to increase the chances of success (i.e., a settlement). There should be an abundance of qualified mediators available. Such mediators ought to be present in the courthouse so that they can be easily reached when mandated mediation is required for.

There shouldn’t be many exceptions to the specific categories of situations where mediation is mandated, and courts should closely investigate any claims of such exceptions made by parties or attorneys. Courts shouldn’t help litigants escape required mediation, thus they must be persuaded of its advantages and have sufficient mediation knowledge. If it seems that the parties have asserted an exemption without sufficient justification, courts shall postpone the hearing of cases to allow mandatory mediation to take place.(29) Prior submitting a case before the court, ADR methods other than mediation are frequently investigated. It is preferential to use the phrase “preliminary mandatory ADR” in most countries. The parties are usually left in charge of selecting the ADR method. One of the options is mediation as a sort of preliminary mandated ADR.

Finally, the practice of mediation under Turkish law should be strictly adhered to, and the framework for mediation should be created in accordance with Turkish law’s requirements, provided that it respects the mediation institution’s core values.

Author;

Hasan ASGAROV

Advisor;

Atty. Lider TANRIKULU

BIBLIOGRAPHY 

(1) Mentioned that “In Roman law, since the parties resorted to compromise to end their disputes arising from both private and criminal law, the settlement agreement can be observed from the examples in practice. In today’s Turkish law, there is a distinction between compromise before the court and compromise outside the court. In Roman law, although both settlements were made, the compromise made before the court was not explicitly regulated as a separate legal concept.” Our author has limited his explanations to the applications of compromise in private law and divided his explanations into two as compromise in Roman law of obligations and compromise in Roman procedural law, since the distinction between in-court compromise and out-of-court compromise is not explicitly made in Roman law, and there is a practice of compromise in both areas. (Nilgün D. Araz, Roma Hukukunda Uyuşmazlık Çözüm yolları olarak Tahkim ve Sulh, Hukukta Disiplinlerarası Yaklaşımlar Konferansları No.2, (İzmir: Adalet Yayınevi, 2021): p.454).

(2) More about political tolerance can be read on the work carried out by Haas, Ingrid Johnsen, and William A. Cunningham (2014) and work focuses on uncertainty influencing on political tolerance. The authors propose that “threat moderates the effect of uncertainty on tolerance; when safe, uncertainty leads to greater tolerance, yet when threatened, uncertainty leads to reduced tolerance.”

(3) Petra Hietanen-Kunwald, Mediation and the legal system: Extracting the legal principles of Civil and Commercial Mediation, (2018): p. iii

(4) Vamik D. Volkan, The need to have enemies and allies: From clinical practice to international relationships, Jason Aronson, (1988): p. 21

(5) Ehud Eiran, Hebrew Law as a Source for Conciliation and Mediation in Supreme Court Decisions: The Legacy of Justice Elyakim Rubinstein, Israel Studies 27.1, (2022): p. 211

(6) Ehud Eiran, Hebrew Law as a Source for Conciliation and Mediation in Supreme Court Decisions: The Legacy of Justice Elyakim Rubinstein, Israel Studies 27.1, (2022): p.210

(7) Jay Folberg, A mediation overview: History and dimensions of practice, Mediation Q, (1983): p. 9

(8) Ehud Eiran, Hebrew Law as a Source for Conciliation and Mediation in Supreme Court Decisions: The Legacy of Justice Elyakim Rubinstein, Israel Studies 27.1, (2022): p. 211

(9) American Arbitration Association, Model standards of conduct for mediators, Journal of the National Association of Administrative Law Judiciary 17.2 (1997): p. 324

(10) Yılmaz Ağırnas, Hukukumuzda Arabuluculuk, (Ankara: Yetkin Yayınevi, 2021), p. 196

(11) Cansu Atıcı, Zorunlu Arabuluculuk Faaliyetinin Anlaşmaya varılamaması sebebiyle sona ermesinin Medeni Usul Hukuku bakımından değerlendirilmesi, Hukukta Disiplinlerarası Yaklaşımlar Konferansları No.2, (İzmir: Adalet Yayınevi, 2021), p. 383

(12) Adam Noakes, Mandatory Early Mediation: A Vision for Civil Lawsuits Worldwide Ohio St. J. on Dispute. Resolution. 36 (2020): p. 421-424

(13) https://www.samildemir.av.tr/2016/04/arabulucuya-basvuru-zorunlulugu-anayasaya-aykiri-degildir/ (erişim tarihi: 29.11.2022)

(14) https://adb.adalet.gov.tr/Home/SayfaDetay/arabuluculuk-istatistikleri07012021034403 (erişim tarihi: 25.11.2022)

(15) Gary Shaffer, Automatic Court‐Annexed Mediation in New York’s Federal District Courts: Sometimes Numbers Don’t Lie, Alternatives to the High Cost of Litigation 37.4 (2019): p. 3

(16) Teresa Moore, Mediation Ethics and Regulatory Framework, Journal of Mediation & Applied Conflict Analysis 4.1 (2017): p. 543

(17) Masood Ahmed, Critical Reflections on the Proposal for a Mediation Act for Scotland, (2020): p. 1-2

(18) Shahla Ali, Court mediation reform aims in a global context: Efficiency, Confidence and Perceptions of Justice, Court Mediation Reform. Edward Elgar Publishing, (2018): p. 45

(19) Petra Hietanen-Kunwald, Mediation and the legal system: Extracting the legal principles of Civil and Commercial Mediation, (2018): p. 65

(20) Hazel Genn, Judging Civil Justice, Cambridge University Press, (2009): p. 103-108

(21) Hazel Genn, Judging Civil Justice, Cambridge University Press, (2009): p. 125

(22) Adam Noakes, Mandatory Early Mediation: A Vision for Civil Lawsuits Worldwide Ohio St. J. on Dispute. Resolution. 36 (2020): p. 411

(23) Serpil Işık, Mediation as an Alternative Dispute Resolution Method and Mediation Process in Turkish Law System: an Overview, Annales de La Faculte de Droit d’Istanbul, Vol.65, (n/d): p. 66

(24) Süleyman Dost, Arabuluculuk Ücret ve Masrafları Hakkında Karşılaştırmalı Bir Değerlendirme, TBBD, S 115, (2014): 462-463

(25) Yılmaz Ağırnas, Hukukumuzda Arabuluculuk, (Ankara: Yetkin Yayınevi, 2021), p. 245

(26) Nancy Welsh, Mandatory Mediation and its Variations, Investor-State Disputes: Prevention and Alternative to Arbitration, 2, (2011): p. 111

(27) https://adb.adalet.gov.tr/Home/SayfaDetay/arabulucularimizin-ve-kamuoyunun-dikkatine15012021093748 (erişim tarihi: 25.11.2022)

(28) C. H. Van Rhee, Mandatory Mediation before Litigation in Civil and Commercial Matters: A European Perspective, Access to Just. E. Eur., (2021): p. 22

(29) C. H. Van Rhee, Mandatory Mediation before Litigation in Civil and Commercial Matters: A European Perspective, Access to Just. E. Eur., (2021) p. 23

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