An alternative to alternatives

Malike Polat – Senior ICT Expert, LLM

Alternative is a word which may offer true relief when it is actually found in reality. In this aspect it may reinforce an individual’s quality of problem solving mechanism as well. When it comes to law it seems like legislators are also aware of this problem solving mechanism and significance of alternative resorts. Considering that the term of conflict is an undeniable part of human life and courts are the only civilized version of legal problem solving mechanism, it is not hard to understand why case loads unpredictably increased over the entire world. To cope with this problem a new concept called Alternative Dispute Resolution (ADR) presented as a new panacea for this century’s legal problems.

ADR simply means a collection of new dispute resolution methods besides opportunities offered by classical civil procedural codes. Namely conciliation, mediation, negotiation, mini trial, mediation-arbitration (Med-Arb) can be mentioned among these methods. Alternative methods are very flexible and do not require an application tonumerous clauses concept.  Hence creating atypical methods derived from those also leads to a new method which enables new alternatives. Med-Arb which includes a combination of mediation and arbitration is a very good example for this kind of hybrid methods. Creating new methods enables a wise dispute management system which can be designed according as to the necessities of the dispute. On the whole aforementioned characteristics herald a very efficient and brief dispute resolution process.

Being a follower of the mainstream Turkey also enacted the Act of Mediation in Civil Disputes by the declaration on the Official Gazette dated 07/06/2012 and numbered 6325. Since the draft version of the aforementioned code there have been fevered arguments especially targeting the provisions about qualifications of the mediators, education process and the warrants of mediators. Though it seems like after modifications of the draft version the arguments lowered to some extent, there is still a considerable hesitation about application of mediation in Turkey. And only time will tell if mediation will be an alternative to other alternatives in Turkey or not?

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