What is Arbitrators Job Description?
Arbitration job description is a method of dispute resolution aimed at resolving disputes through private institutions called arbitration courts.
Arbitration courts generally consist of one or three arbitrators. The main task of the arbitration tribunals is to make a “decision of arbitration” to resolve the disputes by applying the rules of law.
As a rule, arbitration decisions are final and binding. Only under exceptional circumstances, and in the presence of judicial courts, the binding of these decisions can be discussed. For example, such an exception may be the case if the parties have not made a valid arbitration agreement. Arbitration decisions can be made in many countries of the world.
In general, the arbitration process takes place as follows:
Each arbitration process depends on the written agreement of the parties. If the parties agree that a dispute should be resolved by the arbitral tribunal, rather than the judicial courts, it is called an “arbitration agreement”.
What is Mediation Job Description?
A dispute is a method job description of dispute resolution by persons who are parties to a private legal dispute, before or after the initiation of a lawsuit, in the sole discretion of an impartial and qualified third person (arbitrator) whom they choose with their free will. Mediation is a procedural law institution that aims to resolve dispute quickly and precisely, out of court.
Mediation is divided into two categories, “forced mediation” and “discretionary mediation”:
Compulsory Mediation: For some disputes there is a requirement to go to mediation before you can sue the court. Mandatory mediation is a prerequisite for these disputes. That is, the case opened without going to the mediator is rejected because of the absence of the condition. Some claims (severance indemnity, notice indemnity, overtime pay, salaries, etc.) subject to business cases are included in the scope of compulsory mediation.
Optional Mediation: Optional mediation means that the parties prefer to apply to the mediation before filing a case for the settlement of the dispute, unless it is necessary to go to a mediation. Parties may resort to arbitrary mediation in respect of any dispute of private law which they may save.
Disputes connected with criminal conduct are not mediated; According to the Code of Criminal Procedure, settlement / settlement provisions shall be applied and resolved by the settlement offices located within each prosecution office.
Who is the mediator? How to Become a Mediator
Mediator ; a graduate of law faculty, a person who has at least 5 years of experience in his profession, and has received specialist training in mediation, communication and interviewing techniques (Mediation Act, Article 20). As lawyers may also be mediators, it is seen that the terms ” mediator lawyer ” are used among the people.
The mediators will provide basic information on mediation activities, communication techniques, negotiation and conflict resolution methods, behavioral psychology, etc. after graduating from law faculty. and theoretical and practical knowledge such as the professional training will receive. After the training of mediation and vocational competence is measured by the mediator exam. Mediators who successfully pass the mediation test must register on the mediation list in order to be able to carry out the activity.
In particular, only persons enrolled in the list of mediation held by the Ministry of Justice may conduct mediation activities.
Compulsory Mediation in Business Law
In labor law, annual leave allowance between worker and employer, overtime work, salary, etc. such as labor receivables such as notice, indemnity, severance and indemnity. will be resolved through compulsory mediation as of 01.01.2018 ( Labor Court Law No. 7036, Article 3).
In order to resolve the legal problems between the employer and employer, it is obligatory to apply to the mediator first. Jobs filed in the labor court without applying to the mediator will be dismissed reasonably due to “absence of a trial condition”.
If the employer and the employer agree on a mediator for the settlement of a legal issue related to labor law, the mediator tries to resolve the mediator agreed upon by both parties. If the parties can not agree on a mediator, the parties shall appoint a mediator to resolve the mediation dispute to be selected among the mediators registered in the list on the “mediation center” in each name.
The fields of application of the mediator, which is accepted as a “case condition” in business law, are as follows:
Compulsory Mediation in Return-to-Work Cases: Work-return cases are a type of work case that allows a worker to return to work if the employment contract is terminated unlawfully. After the work has been terminated, the worker shall be entitled to mediation of the disputehe has to apply to the mediator to resolve it. The work contract terminated shall have to apply to the mediator in accordance with the provisions of the Labor Tribunal Law on the grounds that there is no reason in the notification of termination or that there is no valid reason for the termination notice and the return to work within one month from the date of notification of the termination notice. If the mediation event can not be reached at the end of the proceedings, the case may be filed in the labor court within two weeks of the date on which the last order was issued. If the parties agree, the dispute may also be taken at the same time instead of the labor court. The decision of rejection in case of direct dismissal of the defendant due to the direct action without resorting to the mediator is communicated to the parties in person. The final rejection order may also be appealed to the mediator within two weeks of the resentment (4857Labor Law article 20/1).
At the end of the mediation activity, the parties are in agreement about starting the worker;
- Starting date of work,
- Monetary amount of wages and other rights,
- If the worker is not employed, the amount of the compensation,
- determinations are obligatory. Otherwise, the agreement is deemed not to have been made and will be arranged according to the last minute. If the worker fails to start work on the agreed date, the termination becomes valid and the employer is only responsible for the legal consequences thereof ( Labor Law No 4857, Article 21/5).
It is sought that employers should participate in mediation talks together and make their wishes compatible with each other in order for the mediation to be carried out when the mediation is filed with a request for reinstatement in the presence of the principal employer-subordinate employer relationship ( Law no .)
Compulsory Mediation in Termination Indemnity: Termination indemnity is indemnity paid to the employment worker as a provision for the seniority earned during the period of working in the workplace if certain conditions are met. In order to qualify for severance pay, it is necessary to work for at least 1 year in the workplace of the same employer. If the employer is entitled to a severance payment, the employee who does not receive his / her employer will firstly apply to the mediator to demand that the dispute be resolved.
Compulsory Mediation in Notice Indemnity: Notice indemnity is indemnity paid at a rate that varies according to the seniority of the workplace where the work has been unjustly terminated without prior notice. Disputes between the employee and the employer due to the amount of compensation, the amount of compensation and the form of payment will be resolved through the ” mandatory mediation ” agency before the case is filed .
Compulsory Mediation in Overtime (Wage) Fee: An overworked work is a work that exceeds 45 hours per week in the workplace’s workplace under the conditions specified by labor law. The employer has to pay up to 50% overtime fee for regular hourly work for every hour of work over 45 hours per week. The overwork fee is the dispute that the courts are most preoccupied with in practice. In order to have an overwork fee, it is necessary to apply to the “mandatory mediation” institution before filing a lawsuit in the labor court.
It is imperative that the dispute be resorted to by means of “mandatory mediation” before the annual paid leave, salary (worker’s monthly wage or wage), general holiday fees, national and religious holiday fees are also sued.
Employers with workers insulted each other: working life of workers and do not insult each other is one of the most common problems experienced between the employer side. Compensation claims arising from the employee and employer insulting each other are also included in the scope of compulsory mediation. If the parties are insulting each other for reasons related to the business relationship, they will not be able to sue directly but will first try to resolve the problem through mediation.
Compensation claims arising from work items in the workplace or damage to the property must also be resolved primarily through mandatory mediation.
Let’s just say that; work or mental illness claims arising from occupational illnesses and the necessity of mediation in the cases of objections, appeals and rash cases related to these matters are not required. These cases can be opened directly to the labor court.
Essential expenses to be made by the mediation office; the parties shall be paid by the parties in accordance with the agreement in case of an agreement at the end of the mediation activity and if the agreement can not be reached, they shall be compensated from the Ministry of Justice to be collected from the unfair party in the future ( Law No. 7036 of Labor Courts ).
Time Limit on Business Disputes in the Application of the Mediation Bureau
The period of time limit for the compensation and remuneration stated below is 5 years (Additional Article of the Labor Law No. 4857), whichever may be subject to the law, provided that it arises from the employment contract:
- Annual leave fee,
- Severance pay,
- Notice of indemnity arising from the termination of the employment contract,
- Compensation arising from termination without complying with the principle of equal treatment of the employment contract.
- The period of time from the application to the mediation office to the date when the last minute is held ceases and the period of disqualification does not occur. On the date when the last minute of disagreement can not be resolved through mediation, the time limit period begins to be reworked (Law 491, Article 17).
Where and How is the Mediation Application in Business Disputes?
If the employer and the employer fail to agree on a mediator registered in the mediator registry, the mediating agency will appoint the mediator to resolve the labor dispute.
The application for compulsory mediation is made in the following manner ( Law No. 3 of the Labor Code No. 7036 ):
If the application for mediation is made by the employee; the employer may apply to the mediation office where the residence of the employer is located or where the work is performed.
If the application for mediation is made by the employer; the worker’s place of residence or where the work is done may be referred to the mediation office.
The role of the mediation bureau in the non-mediation agencies is fulfilled by the magistrates’ court.
The mediation office appoints a mediator to resolve the dispute upon his / her application. Mediator, it can not automatically consider whether the person who has made the assignment is authorized. The other party may appeal to the authority of the mediation office at the latest in the first meeting by presenting the documents relating to the place of residence and the place where the work was performed. In this case, the mediator delivers the file to the office to be sent to the relevant civil court. At the end of the examination, the court will return the file to the office without any charge. The decision of the court shall be communicated to the parties by the office. If the objection is rejected, the same mediator is re-appointed. If the objection is accepted, the authorized office can be applied within one week from the notification of the decision. In this case, the date of application to the unauthorized office is considered to be the date of the application to the authorized office. Authorized office,
How long does it take to resolve the business case through mediation?
The mediator concludes the application made within three weeks from the date on which it is commissioned. This period may be extended by the mediator for a maximum of one week in unavoidable circumstances ( Law No. 3 of the Tribunals no 7036 ).
Because mediation is a quick and effective way to resolve a conflict, the file is closed if the dispute can not be resolved in time. The mediator terminates the mediation activity in the event that the parties can not be reached, the parties can not reach an agreement due to not attending or the negotiations can not be reached or negotiated as a result of the interviews (Law no. 7036, Article 3/11).
What is the Legal Responsibility of the Party Not Participating in the Mediation Meeting?
Parties to the mediation negotiations may participate, either through their legal representatives or through their lawyers. Employees authorized by the employer in writing may also represent the employer at the meetings and sign the final minutes ( Law No. 7036 of the Employment Tribunal, Article 3/18).
If a party to mediation complains about labor disputes, both parties are obliged to attend the first meeting (Article 3 of Law no. 491). If a party fails to attend the first meeting without a valid excuse, the party that does not attend the meeting in the event of a mediation event shall be indicated in the final minutes and this party shall be liable to pay proceedings (fees for attorneys fees, fees, expert wages etc.) even if the case is partially or completely justified ). Moreover, the attorney and the attorney of the attorney can not be counted in favor of this party who does not attend the first meeting.
The proceedings expenses of the parties are left on their own in cases to be filed against the mediation activity which ends because the parties do not attend the first meeting. I mean, both parties pay for the expenses and fees they have made. In this case, however, legal counsel fees may be awarded in favor of the justified party.
Payment of Mediation Fee in Labor Law Disputes
In the event that the parties agree on the end of the mediation activity, the mediation fee shall be paid equally between the parties unless otherwise agreed. In the case of negotiations with the parties, the mediation shall be based on the second part of the mediation minimum wage, taking into consideration the amount of compensation to be paid in the event that the salary to be paid to the mediator is not started, and the salary to be paid for the time not worked.
At the end of the mediation event, the two-hour fee will be paid by the Ministry of Justice if the parties can not be reached, the parties can not attend the meeting, or the parties can not reach agreement after less than two hours. If the two parties are unable to reach agreement at the end of more than two hours of negotiations, the fee for the portion exceeding two hours will be paid equally unscheduled.
Immediately, the mediation fee paid by the Ministry of Justice and covered by the parties is counted as a trial expense in case of prosecution at the labor court ( Labor Court Law No. 7036, Labor Ordinance No. 3/14).
Proceeding at Work Court After Mediation
If the dispute can not be resolved through mediation, the labor court may be sued. The plaintiff must file an action at the court of employment by adding the case of the last minute or the minutes held when the dispute can not be resolved through mediation.
If the final minutes of the dispute can not be resolved by mediation, the court of labor shall notify the court of the final disposition of the plaintiff in a one-week period, otherwise the case shall be rejected. If the request of the court is not fulfilled, the case will be rejected without being sent to the opposing party.
Discretionary Mediation: Which dispute can be referred to Mediation for Disputes?
Apart from compulsory mediation in business cases, any private law dispute may apply to the mediator if the parties are not compulsory. All private legal disputes, works and proceedings on which the parties may freely save can be resolved by the application of the law on mediation (Article 1/2 of the Mediation Act).
Disputes to which the Parties may freely freely dispute are disputes which do not concern public order in general and which do not harm the rights of persons outside the parties, in particular public institutions. For example, while the severance indemnity may be the subject of mediation in employment law, disputes relating to the service discovery case can not be resolved through mediation. This is because the service detection case will affect the social security rights that a person can not save on, as well as some rights of the public administration (premium receiving etc.).
Some lawsuits and works favorable to mediation and to which the parties can freely freely include:
- As a rule, all kinds of business and lawsuits related to commercial law and insurance law,
- In the case of pecuniary and non-pecuniary damage,
- Mirasta share of property, cases of denunciations due to hidden share arising from inheritance law, cases of legal disputes such as muris muvasıa,
- If the divorce case is finalized, the divorce will require material and moral compensation requests, requests for participation or participation,
Termination indemnity, notice indemnity, overtime pay arising from employment law; compensation for pecuniary and non-pecuniary damage resulting from disability or death due to work accident, compensation for deprivation of support, etc. all kinds of compensation claims,
Originating from real estate law; misappropriation of the power of attorney (proxy authority), illegal property abduction, improper savings, etc. (euphoria prevention) case, the occupation indemnity (ecrimisil) case, the preliminary case case, the settlement of the partnership / izale-i şüyü case, the construction contract for the second floor and the immovable property disputes relating to the sale promise agreement.
What Conflicts and Disputes Can Not Be Referred to Mediation?
Disputes over legal issues on which the parties can not freely save can not be resolved through mediation. The disputes that the parties can not save on are mostly disputes arising from public law. In addition to public law, some legal problems related to private law such as family law can not be solved through mediation.
It is important to note that disputes related to a criminal offense under the Code of Criminal Procedure are outside the law of mediation. For these disputes, all disputes must be settled by the settlement bureau of the prosecutor’s offices, pursuant to the provisions of the Criminal Procedure Code.
Other disputes that the parties may not go to mediation are:
- The criminal cases,
- The correction or amendment of the population register,
- In the case of divorce,
- Disputes involving domestic violence claims,
- Full jurisdiction and cancellation of the administrative jurisdiction,
- Disputes arising from tax law,
- Determination of service or work accident caused by business law, etc. as well as all detected cases.
What is the application period for mediation?
The parties to the dispute can agree to apply to the mediator before the case is filed or after the case has been filed ( Article 13 of the Mediation Act of 6325). For this reason, as long as the parties agree to go to the mediation, the mediation agency can be consulted at every stage of the dispute.
The court may also inform or encourage the parties to apply for a mediation if the case is brought in. One of the parties to the dispute may submit a proposal to the other party to apply to the mediation either before or after the trial. The bid submitted to the opposing party to apply to the mediator is considered rejected if not responded positively within 30 days. (Md.13)
If the parties declare that they will apply to mediation together after the case is opened, the proceedings shall be postponed until three months after the court. This period may be extended for up to three months on the parties’ application to the court together again (art.15).
What are the rights and obligations of the parties in the mediation process?
Although mediation is an out-of-court method of settlement, parties have certain rights and obligations in the reconciliation process. The agreement can be applied if the mediation process is concluded with an agreement; some assurance mechanisms have been established so that the parties can use the case in the future without causing any loss of rights.
The rights and obligations of the parties involved in the mediation process are:
The mediation process must be conducted secretly (Article 4 of the Mediation Act). The mediator must keep all information, documents and records obtained or otherwise obtained by him as a mediator confidential. The parties also have to observe privacy. During mediation, no one can take photographs, record sound or images ( Mediation RegulationArt. 6). If mediators are acting against the confidentiality, whether they are mediators or parties, they are punished with imprisonment for up to 6 months (Article 33 of the Mediation Act). In addition, the removal of the mediator from the mediation record will also be on the agenda. During the negotiations, or when the audio or video is recorded in any environment where the parties come together, the Interviewing of the Interviews or the Criminal Record is processed. Persons who work or are associated with the mediator must also observe the principle of confidentiality.
The Principle of Equality and Irrationality in Mediation Practice
The mediation process is a process that begins with the free will of the parties. The parties are completely free to apply to the mediation or to resume the process after the application. The parties may at any stage give up disagreement through mediation, in no way forced to participate in this process. The parties have equal rights throughout the process, both when applying to the mediator. One of the parties can not be excluded from the mediation period (Mediation Law Article 5).
Execution of the Mediator’s Choice, Impartiality and Mediation Process
The mediator shall be elected by the parties freely among the mediators registered in the mediator registry. If the parties wish to work with a mediator, they can work with that mediator.
The mediator must act impartially and equally to all those involved in the mediation process. The mediator will lead to doubts about the impartiality of the process, it can be found in attitudes and behavior (No. 6325 Mediation Law md.8).
The mediator is not obliged to start the mediation activity, it is obliged to inform the parties about what the mediator means, basic principles, how the process will be carried out and the results (Article 11 of the Mediation Act).
The mediator can meet with each party separately, as well as with both parties. It is important to balance the rights and interests of the parties and to arbitrate with the most appropriate method for resolving the dispute. Parties may also participate in these negotiations with their lawyers ( Mediation Regulation, Article 11/1).
The use of a judicial authority in the form to be used by court proceedings can not be made by the mediator ( Mediation Act md.15). For example, witness hearings, explorations and expert reports can only be carried out by the courts, and the mediator has no authority to do this.
The mediator has to fulfill his duty himself. The mediator can not transfer this duty partly, even if it is someone else, the fulfillment of the mediation duty by someone else. The mediator is obliged to inform the parties in the event of situations that may lead to suspicion of impartiality. For example; a social relationship between the mediator and the business of dispute, the definition of one from the other, etc. there can be doubts about neutrality through countless reasons. Although the mediator informs the parties, they may resume mediator duty if they request that the mediator continue to work ( Mediation Regulation, 12).
The mediator may not later, as an expert or lawyer, in the case opened in relation to the dispute he served in this capacity.
At the end of the mediation activity, the mediator must keep a copy of the mediation document for five years (Article 15 of the Mediation Act).
Agreement of the Parties on the Result of Mediation
If, in the case of mediation, the parties have reached an agreement at the point of settlement of the dispute, the mediator shall make all elements of this agreement written. The Mediation Act describes the document on which the parties have agreed as “agreement document”. The agreement document issued by the mediator must be signed by the parties and the mediator ( Article 18 of the Mediation Act, 6325 ).
The parties may request from the competent and competent court that an annotation on the executability of the agreement document be issued. Agreement document, executability is also valid without signature. The treaty, which includes the legality, executable title, is treated as a courtesy, ie a document in the form of a memorial.
The competent and competent court on the issue of enforceability of consent to the agreement document; if the mediation has been applied before the lawsuit is filed, it shall be determined according to the rules and rules of the original dispute. For example, in the event of a mishandling of financial and moral damages due to a mortal traffic accident, the place of residence of the victim of the traffic accident or the place of residence of the plaintiff may be requested from the court of first instance. If mediation is used during the appearance of the case, a commentary on the executability of the agreement may be requested from the court in which the case is seen. Executability is a controversial jurisdiction, and it can be decided on the comment by making a file on the examination file (Law no. 6325, Article 18/3). The judge’s authority to review is limited only to the mediation of the content of the agreement and the suitability of the allegory. The court has no authority to change the content of the agreement, to add or remove any provision.
In particular, it should be noted that in the disputes concerning the family law which is favorable to the mediation,
The mediation issue can not be used in declaration or document cases
As a result of the confidentiality of the mediation activity; If the parties fail to reach an agreement at the end of the mediation process, the statements or arguments put forward in the mediation process can not be used as evidence in courts. Even if the dispute is brought to arbitration after mediation, these documents and statements can not be used as evidence ( Act on Mediation 6325 ).
The parties, the mediator or a third person shall not prove or testify as evidence any of the following statements or documents when a lawsuit is filed against the dispute or when an arbitration proceeding is filed (Article 5):
- The invitation to mediate between the parties or the request of one party to participate in the mediation activity,
- The opinions and proposals put forward by the parties for ending the dispute through mediation,
- During mediation activities, the proposals submitted by the parties or the acceptance of any fact or claim,
- Documents prepared solely for mediation activity.
- Prohibition of proceeding as evidence in the course of law or in the course of arbitration shall be applied irrespective of the form of the declaration or document.
Disclosure of declarations or documents submitted during the mediation process can not be requested by the court, arbitrator or any administrative authority. Even if such statements or documents are presented as evidence in contradiction to the provisions of the law on mediation, the judgment submitted by the court can not be taken as basis.
Without prejudice to any of the above-mentioned elements of the declaration or documentary, the legal proceedings and the evidence which can be put forward in the arbitration shall not become unacceptable evidence merely because they are presented in mediation (Act 5/5 of the Mediation Act No. 6325).
How to Pay the Mediator’s Fees
The mediator receives a fee for his services (Article 7 of the Mediation Act). If the parties have not agreed otherwise; the fee for the mediator shall be determined by applying the Mediator Minimum Pay Scale, which is in force at the time of the conclusion of the activity .
The cost of the mediator and all other costs are equal if not otherwise agreed. For example; in the case of disputes which can be measured by currency, there is a mediation fee which is paid by both parties equal to 6% of the total dispute and paid in equal amounts to the parties.
Mediation System for Family Law
Mediation, yet under development in USA. Disputes relating to family law will be resolved through mediation, according to the draft legislation, which is not yet enacted. Mediation on family law; includes the following disputes with the exception of cases involving violence against women:
- Divorce suit,
- Material and moral indemnity in divorce,
- In the divorce, sharing of goods, that is to say, to participate, to receive a contribution,
- Share of household goods.
- The Mediation Act provides the general framework of the mediation as an out-of-court method of dispute resolution; The Mediation Regulation has included details of the subject. Participation in the mediation process with a lawyer will prevent the loss of rights, even though the legislation is not sufficient.