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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

Guest post by Afghan Student Mohammad Naser Akbar* — Our fight against Ignorance in a Third World Country

On August 24, 2016, it was much like any other day; although normal days in Afghanistan are somewhat different than those in Canada or the United States of America. That day just happened to be the first day of classes of the fall semester at the American University of Afghanistan. Everyone appeared excited Three story Bayad Buildingand delighted for a new beginning; just as how I felt. Nothing alerted or prepared me for the tragedy and death, including my own near death experience that occurred that day in which the University turned into war-zone.

The morning started like any other day; I did my morning preparations, and went to work, as I both worked and attended classes. After work, I drove to the University, and entered the campus after going through security clearance and a body-scan machine. Everything was normal, I stepped in the library, and logged in to a computer to find my classrooms.

I had three classes to attend. The first two classes were a mixture of joy and boredom, as the first class was public speaking (a topic I thoroughly enjoy and am passionate about) and the latter was calculus (a topic that causes myself and others to yawn at times). Then, I attended a class on corporate finance. Without warning, approximately 40 minutes into the class there was a huge explosion, causing windows to shatter all around the classroom. Everyone hit the floor in fear. Insurgents flooded the campus and the University became engulfed in conflict. The insurgents’ goal: to suppress higher learning and snuff out the students’ ambitions, including my own.

After we somewhat regained our composure, the students went in to survival-mode. Some students fled the class and ran toward the emergency gates. Others, including myself, were worried about being intercepted by the insurgents while fleeing, and decided to remain in the classroom. We put chairs and tables in front of the door to make it harder for anyone to enter.

While also fearing for my own life, I was gravely worried about my sister. She was also attending classes that day, and was stuck on a different floor. I tried to call her, but there was no answer. Further fear and concern flooded my every thought. By this time the lobbies were already taken by the insurgents, who were equipped with machine guns and hand grenades. It was impossible for me to run to the aid of my sister, which broke my heart.

My parents were out of the country, so I could not call them to seek their councel and comfort. I called my other sister, who was at home, to let her know what was happening and that she should not call back, as the noise would cause me, and those I hid with, danger. After twenty minutes of hiding under tables and chairs, there were two additional explosions that came from the class opposite to where we were hiding. That terrified everyone even more. Moments later, the insurgents kicked in the door to our classroom.

Staying in the class was choosing death. After a quick judgment call, I jumped out from the second-floor window. My left foot got stuck on an air conditioner that was below the window and I lost my balance, causing me to hit the ground so hard that I broke my hips and right wrist. I blacked out. When I came to my senses, everything was painful. I heard my classmate screaming. I could not see her, but she yelled in a desperate-tone, “Help! Please somebody help me”. Everyone ran for their own lives. The only noises were those of machine guns, explosions, and intense screams of students who ran from these merciless sounds. In the crowd of noise, I lost my classmate’s voice. She was lying near me. She was facing the grass on the little lawn in front of the structure, surrendered to death. To her right was a wooden bench which allowed for those seated thereupon to have a calm view of the rest of the campus.

Her name was Jamila, she had plans and hopes for graduation, a new job, and applying for her masters degree. If for one moment she knew any of these incidents would happen to her, she would not have left her residence for the University that day. Fate is cruel and hope can be dangerous. I had heard this many times before in the movies and in life, but it was never real to me; until now.

I was trapped inside the campus for four hours. Most of that time I could only crawl with my forearms, given my injuries. Even with this limitation, I spent the entire time looking for a haven. As I crawled closed to a faculty building, a friend of mine, who had a broken leg but still able to walk, yelled, “Naser, get up and let’s go!” I replied, “Where would you go!? Every place is more dangerous than previous.” He continued on his way. I ended up crawling about three hundred feet from where I had originally fallen, heading towards an emergency exit, but never made it. I fainted. I do not remember for how long I was lying there, but when I woke up, one of the insurgents crossed over my body while murmuring to someone. A short time later, I heard rifle sounds. I thought that the insurgents were coming towards me and that it did not matter whether I was dead or alive; they were going to shoot me either way to make sure I was dead. Regardless of one’s faith, all pray to God (or whatever religious equivalent) to save one’s life in these dire circumstances. I laid like a dead corpse. The sounds grew closer. I saw green lasers coming from behind the bushes and then, suddenly, an ease captured my whole body.

I heard a soldier’s voice whispering to another “go behind the faculty building wall and cover for me.” It was like a miracle; an angel arrived just in time to save my life. One of them approached and then two others. The first one took cover and the other two had their rifles pointed towards me. With a shivered voice I said, “I’m a student; my legs are broken please help me.” One approached me with a low voice, and said, “Has anyone placed any object under your body?” He was referring to explosive devices. I said “I don’t know.” The soldier directed me to move, and I moved as much as I could. The soldier then picked me up on his shoulders and carried me to the ambulance. It took me two months to recover from my injuries. Those who lost someone that day at the hands of the insurgents’ violence will never be the same; their hearts will never fully heal; and they can never fully recover from the eternal pain inflicted.

The difference is stark between viewing the above as a fictional movie and experiencing it, to say the least. It was an appalling, shocking and awful real-life situation; I would not wish it on my worst enemy, if I had one. The concept of fate that was always vague to me; all of a sudden seemed so definite and real. The persons who lived and died did not choose either; it was left completely out of their control.

The insurgents’ goal was clear: to disrupt and discourage higher education. It is a bigot who acts harsh and ruthless to the youths who have nothing but a strong desire for furthered education. These are young people who grow up facing countless challenges and risks, all pursuing and pushing for a better tomorrow. Unmindful that fate is waiting thirsty for their blood in the most barbaric way to take their lives in instant. One wonders what causes people to decline to this inferiority where they kill students just because they have a strong desire for knowledge!?

What some people tend to overlook when considering their own dreams are the dreams never fulfilled by others. In my part of the world, people are born in a war-zone. There are frequent sounds of bullets, and the color of blood is just like any other color from the countless list of colors. Some of us are lucky enough and make it through life. Others are ill-fated and lose their lives in the struggle for a change that has been fought for the last three generations. It is a constant struggle for change; maybe never-ending, but we have nothing more to lose, so we continue. As Garcia Marquez reads, “children inherit their parent’s madness.” It is ignorance that allows this abhorrent behavior to subsist. We must work to enlighten persons vulnerable to being manipulated into performing heinous acts. Education must prevail, and we must persevere until it does so.

*I was recently working on writing an essay about my experience from the terrorist attack on the American University of Afghanistan. I have tried to illustrate it from a student’s perspective, different from what you might hear from media. Ken Kast my mentor from New York helped me a lot in writing this, Andra Ionescu also helped me from Poland I want to say thank you to them.

Questionnaire on Dispute Resolution Clauses from the Transnational Law Center at the University of Ghent

Call for Participation by surveyindividuals who have experience with commercial dispute resolution.in a Questionnaire on Dispute Resolution Clauses from the Transnational Law Center at the University of Ghent
 
There is a lack of clarity regarding the obligations that arise from dispute resolution agreements with a mediation/conciliation component. In order to reduce this uncertainty, a chapter of the BOF funded PhD research of Maryam Salehijam (supervisor: Professor Maud Piers) from the Transnational Law Center at the University of Ghent focuses on the question “What are the parties’ obligation under an ADR agreement?” To answer this question, the research is divided into two stages, the first stage involves a questionnaire that assesses the familiarity of legal professionals –including lawyers and third-party neutrals- in selected jurisdictions with dispute resolution clauses calling for non-binding ADR mechanisms such as mediation/conciliation. Moreover, the questionnaire provides willing participants with the opportunity to copy and paste a model or previously utilized dispute resolution clause. In the second stage, the clauses gathered as well as clauses extracted from other sources will be content coded using the software NVivo in order to determine which obligations tend to be reoccurring in the majority of the clauses under analysis.
 
The questionnaire targets individuals who have experience with commercial dispute resolution. The participation in the short questionnaire will require minimum effort, as most questions only require a simple mouse-click. Please note that the information entered in the survey is kept anonymous unless indicated to the contrary by the participants. Moreover, as the analysis takes place on an aggregated level, the findings will not disclose personally identifiable information. Accordingly, the information provided will only serve scientific purposes.
 
To complete the questionnaire, please click on the following link: http://lawsurv.ugent.be/limesurvey/index.php/678366?lang=en (closing date 29th of April 2017).
 
If you wish to provide the model/previously used dispute resolution clauses without completing the questionnaire, please email Maryam Salehijam at maryam.salehijam@ugent.be
 
Thank you for taking this request into consideration.