International

Turkish Experimentation on Mandatory Employment Mediation: Mediating with Pro Se Complainants

Guest Author: Gizem (Gigi) Halis Kasap, LL.M.

Gigi is a member of the Istanbul Bar Association and currently an SJD candidate at WFU Law School in North Carolina.

Gizem Gigi Halis Kasap

Imagine yourself as a Turkish mediator in an employment dispute. You have a pro se complainant who worked for a company for six years, being forced to work overtime and fired with no explanation, and an employer’s counsel in a joint caucus. In his opening statement, the employer’s counsel recites the facts and relevant case law for a considerable amount of time while the pro se complainant tries to apprehend all the fancy legal words that the counsel uses. The first separate caucus with the complainant reveals that the complainant did not understand what the counsel said and do not know what to seek in damages and decides to agree what the counselor offers because he is in immediate need of money.

Here the conundrum is. As a mediator, you are aware of the ethical rules and the fact that you have to be impartial. In the meantime, you also know that all doubts in the implementation and interpretation of the provisions of the Turkish Labor Law, including its implementing rules and regulations, shall be resolved in favor of labor, so adjudication before a judge might have resulted differently for the complainant. Considering all of these, does that mean that a Turkish mediator may not facilitate justice, or in other words, is mediation at odds with the basics of Turkish employment law?

Voluntary mediation was introduced into Turkish law with the Law on Mediation in Civil Disputes in 2012.1 Five years after, pre-litigation mandatory mediation for certain employment disputes was adopted with the Law on Labor Courts.2 As of January 1, 2018, parties must have attempted mediation before commencing the trial.3 To that extent, for the first time, disputes regards the indemnity claims and reemployment have become subject to pre-litigation mediation.4

Mandatory mediation in employment disputes has been harshly criticized by many commentators, unions and lawyers on the grounds that mandatory employment mediation is not fair because of the imbalanced power dynamics, especially where the employee cannot afford a legal counsel.5

If we look at our hypothesis again, what should a Turkish mediator able to do? Under Art.3 of the Turkish Ethics Rules of Mediators, a mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.6 That being said, Art.5(8) of the Ethics Rules stipulates that “[i]f a party appears to have difficulty comprehending the process, issues or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.”7

Reading these two articles together, we can conclude that procedural fairness and party competency as imperative as the impartiality of the mediator. Thus, a mediator is entitled to take the liberty of making “potential accommodations, modifications or adjustments”. To provide this, mediator, for example, questions whether the complainant fully understands the mediation process, paraphrases the statements and asks the employee again, or if it is necessary, he or she postpones the session, withdrawing from or terminating the mediation.8 In addition to these ethical requirements, the Ethics Rules also ensures the self-determination and informed consent of the parties.9 Thus, it is of significance to distinguish that mediation as an alternative to litigation is not against the notion of justice and fairness per se.

There could be, however, possible failures of court-annexed mediation 8 cast doubt upon the fairness, especially where pro se complainants are involved. In Wright v. Brockett, where the pro se tenant agreed to vacate the apartment as a part of the settlement agreement, the court set aside the agreement noting that the settlement agreement was not “a provident decision by the tenant, free of coercion.”10 Similarly, the Ninth Civil Circuit of the Turkish Court of Cassation set aside the settlement agreement where the mediator did not communicate with or question the employee at all and forced him to sign the settlement agreement without seeking for an informed consent.11 Although the pro se complainants in both cases were successful in challenging their settlement agreements, that might not be always the case.

Nonetheless, risks associated with mediating with pro se complainants can be outweighed by integrating certain methods into the mediation process. Some commentators have offered implementation of a “cooling-off” period which allows parties to withdraw from the settlement agreement for any reason.12
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A week of ADR events in Sao Paolo, Brazil

Monday started with a radio interview highlighting the events of the upcoming Mediation Congress in Sao Paolo. Alexander Palermo Simoes and I were featured on Ana Pretel’s weekly radio show covering interesting legal topics. You can listen to the show here:

From there we paid a visit to The IV Pan American Arbitration Congress, hosted by CAM-CCBC on 23 to 24 October 2017 in Sao Paulo saw close to 500 attendees listen and participate in a broad range of panels dealing the unique problems associated with arbitration in the region. While focusing on Pan-American countries, the event draws global participation and showcases comparisons of practices with an eye toward sharing best practices in international arbitration. CAM_CCBC, under the leadership of Carlos Forbes, as organizer of the event has demonstrated a commitment to improving the quality of arbitration services,
and making Sao, Paolo Brazil, a hub for international arbitration in South America and the region. aFOTO-MARCOS-MESQUITA--45

Immediately following the Pan American Congress, on October 25th, was the first ever International Mediation Congress in Brazil — Congresso Internacional de Mediação Empresarial – GEMEP I CBAr held at AASP – Associação dos Advogados de São Paulo. The organizing committee – Alexandre P. Simões, Claudia Frankel Grosman and Patricia Freitas Fuoco created a sold out event of stellar debates, workshops and networking events that highlighted the growth of mediation in Brazil under the 2015 law.22815150_10155027876923443_5943122743707166741_n

The following days were highlighted by the “VIII Competição Brasileira de Arbitragem e Mediação Empresarial da CAMARB” – a mediation and arbitration competition in partnership with Mackenzie Presbyterian University. Participation by 57 arbitration teams, 18 mediation teams, 80 assessors, 250 arbitrators and approximately 400 listeners resulted in the biggest event of its kind in Latin America! 22886002_1944929519165165_4585326340301035114_n

Here is a link to the CAMARB Competition website: LINK

Here is a link to a newspaper story “Brazil hosts greater arbitration and mediation competition in Latin America” describing the tournament : LINK

Kofi Annan speaks on Religion, Pluralism, and Democracy

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“Globalization, while integrating the world’s economies, societies and people more than ever, and creating unprecedented wealth across the globe, is also generating a backlash because the benefits are not fairly shared and the gap between the rich and the poor has widened. The losers of globalization- encouraged by populist politicians – are retreating into primal identities, some real, some imagined, as bulwarks against uncertainty and fear. Around the world, groups or movements are trying to reject the ties that bind all of us across religious, national, racial, and class divides. Populist and xenophobic movements are demonizing migrants and other minorities in the name of protecting their own identities, often based on some notion of ethnic and or religious purity. Even more brutally, religious extremists are denying humanity not only to those of different faiths, but even to those of their own faith who do not share their convictions. Diversity is increasingly being portrayed as a threat that undermines our societies, rather than an asset that can benefit us all.”

 

http://www.kofiannanfoundation.org/speeches/bali-democracy-forum/

Unique 20 hour Master Negotiation Class to be offered at 2 different Southern European destinations in 2017

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We have designed a unique 20 hour Master negotiation Class to be offered at 2 different Southern European destinations in 2017 at different times, depending upon interest. There will be opportunities for guest accommodations, and scheduled special activities for non-participating guests. This survey does not obligate anyone, but will assist in further planning. For those who are interested, the survey is very brief and should take no longer than a couple of minutes. 

Take this survey