Mandatory mediation, a long-standing practice in the Turkish legal system, has recently become a procedural requirement in certain cases. It is an efficient dispute resolution method that is applied in both the Continental European and Anglo-American legal systems. In essence, mediation is a process wherein the parties involved in a dispute seek resolution outside of the court by engaging the assistance of an impartial third party or parties.
Under Turkish legal system, mediation is a procedural requirement in disputes arising from Labor Law, Commercial Law and Consumer Law as well as in other cases prescribed by law. Indeed, mediation stands as a highly effective and widely embraced method to reduce the burden on courts within the legal system. Facilitating efficient and timely resolution in lengthy proceedings, it allows parties to access justice promptly and effectively, in line with the principle that “justice delayed is justice denied,” and assists in restoring the parties’ damaged interests.
However, while it is anticipated that mandatory mediation in Family Law would yield doctrinally fruitful outcomes in theory, there are numerous practical considerations among legal practitioners regarding the transition from an optional to a mandatory mediation process due to potential real-life implications.
I. Are Family Law Disputes Suitable for Mediation?
Law no. 6235 on Mediation in Civil Disputes explicitly states that “Mediation is not suitable for disputes that involve allegations of domestic violence.”
Surely, law is a dynamic entity, and Family Law, in particular, is a legal domain that goes beyond mere rules, encompassing the intricate management of psychological aspects. In fact, at each stage of a family life cycle, distinct challenges, needs, or milestones emerge. Given the differences among people, Family Law disputes face challenges in reaching a conciliatory resolution when individuals exhibit the traits associated with anxious, manipulative, or obsessive personality models.
Law no. 6284 to Protect Family and Prevent Violence against Women and the Istanbul Convention, which is essentially the basis of Law no. 6284, are regulations that present significant opportunities for the protection of women and children in domestic violence cases, contingent upon the effective functioning of the system.
Regrettably, Türkiye’s decision to withdraw from the Istanbul Convention, which was aptly named after a city of the country as a tribute to its leading endeavors in promoting women’s and children’s rights, has been a significant blow to the nation’s legal system.
Still, Law no. 6284 prohibits any regulation that might enable the explicit victimization of either party involved in domestic violence disputes, firmly stating that mediation is unsuitable for such cases. The reason is that in cases of psychological, economic, physical, sexual and cyber violence, it is impossible for the parties involved to find even the slightest common ground.
II. Can Mediation Be Effective in Family Law Disputes?
Except for cases involving domestic violence, mediation can be regarded as an effective and results-oriented method in disputes where the parties hold equitable bargaining power at the mediation table. Indeed, the essence of mediation lies in identifying the core issues underlying the dispute. In all forms of mediation, accurately identifying the dispute represents a major step towards its resolution.
When a dispute is understood accurately and with clarity, the mediator can effectively recognize and acknowledge the involved parties, grasp the intricacies of the dispute, and empathize with the emotions expressed by the parties in an environment that promotes their safety and comfort, which also enhances the range of potential solutions available during the resolution process. While trying to understand Family Law disputes, the mediator should answer the following questions for their resolution through mediation:
- What is the reason for the dispute?
- Who are the disputing parties?
- What are the positions of the parties in the dispute?
- Is there a balance/imbalance of power? How?
- Does the dispute have a background?
- What are the expectations and needs of the parties?
- How do the parties perceive the dispute?
- Is there a dispute resolution culture? Is the approach positive or biased?
- Is it possible to meet on common ground? If so, what are the chances? If not, can it be possible?
By providing accurate answers to these questions, there is a strong likelihood of achieving effective and efficient outcomes in Family Law disputes through skillful process management by the mediator.
A balanced and objective approach towards both parties on legal grounds while acknowledging the significance of the psychological dimension in family disputes increases the probability of attaining an effective resolution through the process. In cases involving family disputes, there is a prevailing notion that one party is disproportionately victimized, oppressed or in need of protection, while the other party exhibits traits of dominance, oppression, or aggression. Consequently, if the mediator assumes the role of a savior for one party, they will harm the process and veer away from the primary objective.
As a result, while mediation and psychological process management are interconnected in family law disputes, it is crucial that this process management remains within the boundaries of legal principles, ensuring that the imperative objectivity of law is not overlooked.
According to Law no. 6325, mediation is deemed appropriate for cases not involving domestic violence and originating from disputes between adults; therefore, mediation is frequently employed in matters related to financial issues. Hence, mediation finds application in family and inheritance matters where the financial aspect predominates.
In fact, a mediator should possess the necessary expertise to readily discern the needs of the parties involved in family law mediation, while effectively navigating the psychological dynamics and staying firmly rooted within legal limitations. Thus, when conducted appropriately by a competent mediator in suitable cases, mediation in Family Law proves to be a valuable and effective alternative for resolving disputes, protecting the interests of the parties involved.
III. General Opinion
Disputes involving violence are not suitable for mediation. Particularly in cases involving domestic violence, bringing together a suffering, oppressed, fearful, and disempowered party with the other side perceived as powerful and oppressive can generate a sense of psychological power imbalance and undermine the belief in equality among the parties.
On the other hand, in Family Law disputes that do not involve violence, a skilled and knowledgeable mediator’s adept management of the process significantly increases the likelihood of effectively achieving a positive outcome, satisfying the parties’ pursuit of justice while alleviating the judicial workload.
Undoubtedly, it is crucial to raise awareness regarding this subject, and legal practitioners should refer individuals to alternative dispute resolution methods in family law matters that are suitable for mediation while creating opportunities to assess the impact of the process on achieving positive outcomes.
As indicated above, when individuals’ expectations of justice are not timely and promptly met, they may remain dissatisfied, even if the outcome is positive, particularly in cases where moral contentment takes precedence, such as in Family Law disputes. Still, when handled with appropriate care and diligence, mediation serves as an effective and efficient solution for the relevant Family Law disputes.
