MEDIATION
Mediation is widely used in countries with developed legal systems.alternative dispute resolution" (ADR) method. Mediation is the solution of the dispute between the parties with the help of an impartial third party to the court is a method that they can use to solve it without going or court direction. Its flexibility and effectiveness have enabled mediation to be a dispute resolution method that brings the parties of the conflict together at the right point, even in business life, family, school and even international disputes. The parties, who decide to resolve the dispute between themselves voluntarily or with the suggestion of a court, in the presence of a mediator, convey the issue of the dispute to the mediator, in a completely impartial, free from prejudice and judgment mediatorAccompanied by they get the opportunity to discuss their problems and find the best solution for themselves.
Types
Mediation can be in the form of facilitative mediation, which helps the parties find their own solutions, or in some cases, it can be in the form of evaluative mediation, where the mediator can make suggestions for an appropriate solution. A third type of mediation is transformative mediation. In facilitating mediation; The mediator does not direct the parties, give advice, or make decisions like a judge or an arbitrator. In evaluator mediation, on the other hand, the mediator tries to show them the issues that the parties do not see, can advise the parties about the outcome of a possible lawsuit, talk about the weak and strong aspects of the file, and evaluate the content of the file and provide technical and legal information. Transformative mediation is frequently used in peer mediation. Empowerment, by its very nature, requires a completely different infrastructure, process and training as it involves dealing with discrimination and pressure to achieve transformation, engaging with other existing systems and working in partnership to achieve this.
How the Mediation Process Works
Mediator uses many techniques to enhance and open dialogue between parties. The mediator often poses non-directive questions that will enable the parties to understand each other better. The success of mediation depends on the mediator's ability and training as well as the parties' intentions towards the settlement. Mediation negotiations are confidential unless otherwise agreed. What was discussed during mediation cannot be disclosed by either the parties or the mediator. If the mediation process results in a dispute, the information and documents obtained during the negotiations cannot be used as evidence in a lawsuit that is likely to be opened later. The parties cannot be compelled to go to mediation. As the parties can personally participate in the mediation process lawyersThey can also be represented via . The roles that lawyers can assume as a party attorney in the mediation process are party negotiation and consultancy.
The parties have the opportunity to express themselves comfortably in the presence of a trained mediator. Thus, a process is experienced in which misunderstandings arising from the lack of communication are also eliminated. The professional skills of the mediator are used to reveal the real interests of the parties rather than the apparent problems. Thus, parties who understand each other better have the opportunity to take their future positions more accurately. In the mediation process, in which requests and interests are clarified, it is possible to reach effective agreements that are unimaginable and satisfying the interests of the parties, through the negotiation of mutual solution proposals. This feature of mediation enables the parties to comply with the agreements reached as a result of mediation voluntarily, not by force of law. Mediation power; it is future-oriented and at the end of the process, the parties mostly continue their relations, providing happiness and peace.
in court in the judgment, it is decided whether the parties are right or not by discussing the past events and the appropriate legal rules. The decision of the courts does not fully satisfy even the mostly justified side. The lengthy and stressful proceedings have also made it most likely impossible for the parties to re-establish a relationship in the future. The most important advantage of mediation; It allows the parties to get rid of the problems of the past and plan the future in a way that prevents the same problems from happening again. However, the mediation process is not independent of substantive law. In particular, if a party consists of more than one person, whether they have to act together is determined in parallel with the rules of litigation for reasons arising from substantive law.
History of Mediation
Mediation is a dispute resolution method that has been used since ancient times. It is known that the history of mediation in the Far East and Africa goes back to ancient times. In fact, in many cultures, mediation has been used not as an alternative, but as the main method of dispute resolution. Some activities of the ulema in the Ottoman Empire evoke mediation in the modern sense and show that this method is not foreign at all in Anatolian culture. Therefore, mediation is not a newly found peaceful solution method. What is new is that mediation is regulated as a separate institution, procedure and profession. Mediation in the modern sense began to be used frequently in the United States in the late 1960s. This method, which is used especially in the resolution of disputes between commercial, ethnic and religious groups, has set an example for modern mediation. The Roscoe Pound Conference held in 1976 in this field is considered a milestone. After this conference, it was decided to make the courts not only a place of trial, but also a dispute resolution center that will manage the most appropriate solution for disputes.
Historians, on the other hand, agree that mediation was first used in Phoenicia and officially in Babylon. Application Ancient GreeceIn Turkey, it was known as proxenetas mediation, which is a type of mediation other than family mediation. Mediation later ancient romeat, from Roman law starting, specifically Justinian IKnown together with . The Romans expressed mediators under various names as internuncius, medium, intercessor, philanthropus, interpolator, conciliator, interlocutor, interpres and mediator.
Some cultures have considered mediators as holy figures, venerable personalities, wise men. Members of some peaceful communities sought to resolve local disputes, often by putting local leaders or wise men first. This peaceful method is particularly helpful in resolving conflicts Confucian ve Buddhist is widely accepted in the community.
Usage areas
In addition to conflict resolution, mediation can function as a means of avoiding disputes, as well as facilitating the contract negotiation process. Governments can use mediation as a means of informing stakeholders about their policies. Mediation is a valid method for disputes in many areas. Disputes eligible for mediation may differ in each country. Disputes resolved through mediation around the world are as follows:
Family Mismatches:
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MarriageAgreements made before
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Disputes regarding the financial or family budget
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Separation
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Parenting planning (custodial and visiting order)
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Elderly care
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family businesses
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Adult - sibling conflicts
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Parent - adult child conflicts
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Disputes regarding real estate
Business (Law) Disputes:
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wrongful termination
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Employee magduriyetleri / complaints
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unrest among workers
Public disputes:
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Environment
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land use
Commercial Disputes:
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Landlord / tenant
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Builder / contractor - Realtor / landlord
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Contracts
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loss-damage
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Partnerships
Disputes arising from Consumer Law
Other Disputes:
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Conflicts at school
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Violence prevention
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Victim-Perpetrator Mediation
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Disputes in non-profit organizations
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Conflicts in faith communities
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