The Mediterranean amicable dispute resolution methods: a mediation comparison between Italy and Türkiye

Introduction

The judiciary, a pillar of state sovereignty, plays a crucial role in enforcing justice and the rule of law. Yet, an overburdened judicial system can hinder the timely delivery of justice. To overcome this problem, many countries have regulated mediation to give mediation agreements an effective legal basis. They also regulate initiatives for mediation to encourage people to benefit from its advantages. In addition to that, to introduce mediation to a greater portion of the population, they have started to mandate mediation, like Türkiye and Italy. In both countries, mediation became a prerequisite that must be fulfilled before a case can be brought to court. This generally accepted idea stems from the fact that an overburdened judicial system hinders justice, and the judicial system is not sustainable if the state judiciary is the only option in the event of a dispute.

This study explores the procedural aspects, the roles of mediators and lawyers, and the challenges related to confidentiality and legal training. Overall, the authors will explain why its partial success is important and how it can be improved through evidence-influenced legislative reforms, enhanced mediator training, and public awareness campaigns. The findings aim to contribute to the development of more effective and legally sound mediation practices, ultimately enhancing judicial efficiency and access to justice in both countries.

States are progressively adopting alternative dispute resolution (“ADR”) techniques, including mediation, to improve judicial efficiency to overcome these challenges. The incorporation of ADR into the judicial system facilitates more efficient dispute resolution while maintaining the state's ultimate authority and control over the administration of justice.

Mediation, a form of ADR, is used when direct negotiations fail. Unlike courts, mediators do not issue decisions but facilitate negotiations, leaving the outcome to the parties. In both Türkiye and Italy, mediation became a prerequisite and this choice reflects the growing importance of efficient dispute resolution in today's fast-paced world, where the demand for speed and effective communication is paramount. Mediation offers flexibility, practicality, and accessibility by relying on mediator expertise and using modern communication channels, making it an ideal solution for reducing the burden on courts and smoothly resolving disputes in both countries.

Mediation before judicial proceedings in Italy and Türkiye offers several advantages within their respective dispute resolution system. Mediation provides significant time and cost savings for the parties involved compared to traditional litigation. It enables quicker resolutions and reduces legal expenses, making the process more accessible. For the judicial system, mediation is designed to alleviate the heavy workload of courts. For the users of the judicial system, the introduction of mediation has presented a valuable alternative to the adversarial court system and the decision to forgo legal action entirely. This third option promotes amicable dispute resolution, offering a constructive path for a significant portion of the population to resolve conflicts without resorting to contentious legal battles.

Italy and Türkiye, as part of the Continental European legal system, share a similar profile in having strict procedural regulations regarding mediation. The mediation regulations in Italy and Türkiye encourage parties to attend the first mediation session while leaving the decision to continue entirely to the discretion of the parties involved. Italy's regulations and ongoing discussions provide a valuable example for understanding and developing mediation dynamics in Türkiye.

Türkiye is a strategic partner of the European Union (“EU”) and, as such, applied to join the European Economic Community in 1987, starting accession negotiations in 2005. Turkish Mediation in Civil Disputes Law No. 6325 (“Turkish Mediation Law”) was enacted in 2012, after the Directive 2008/52/EC of The European Parliament and of The Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters as a part of the alignment of Türkiye's legislation with EU's standards (Ministry of Justice of the Republic of Türkiye, Judicial Reform Strategy Action Plan, 2009, 33, sgb.adalet.gov.tr; H Öztatar, Genel Olarak Arabuluculuk (Hukuk Uyuşmazlıklarında Arabuluculuk Sempozyumu, I, İstanbul, 2014, 10–11).

Furthermore, Türkiye is eligible for the Instrument for Pre-accession Assistance, which supports political, institutional, legal, administrative, social, and economic reforms aimed at the EU's enlargement. In fact, from the perceptive of the rights and obligations associated with EU membership, it is crucial to comply with EU values and to progressively align with EU rules and practices.

Therefore, considering the candidate status of Türkiye, an approximation of the laws should be encouraged. Within this context, the increasing relevance of ADR, notably mediation, for civil and commercial matters invites a comparison with one of the founder member states of the EU. This study will come across mediation in civil disputes within the legal frameworks of Türkiye and Italy. Both countries encourage initial mediation sessions but leave further participation voluntary. The comparative analysis aims at identifying ways in which Italy and Türkiye's mediation frameworks can be improved for greater effectiveness and legal certainty, drawing by doctrinal insights and international comparisons.

Mediation in Italy

Over the past 20 years, the Italian legislator has invested in ADR methods aiming at reducing the workload of the courts and conflicts' resolution time. As a matter of fact, the length of legal proceedings is at the core of the economic logic as it is one of the factors taken into account by international investors. The issue was already faced in the early years of the 2000s with the so-called Legge Pinto (Law No 89 of 24 March 2001) which entitles litigants to recover compensation from the justice system of the State for excessive delays in civil cases.

Following the unprecedented crisis which resulted from the COVID-19 pandemic, the Piano Nazionale di Ripresa e di Resilienza (PNNR) - Italy's recovery and resilience plan - responded to the urgent need to foster a strong recovery and, among others, it has the objective to reduce pending cases by 90% by 2026 (Ministero della Giustizia, Revisione del PNRR – Giustizia, 27 March 2024). In this regard, the values as of October 2023 indicate a decisive acceleration in the reduction of the duration of proceedings compared to those of 2019 (Ministero della Giustizia, Direzione Generale di Statistica e Analisi Organizzativa, Relazione sul Monitoraggio Statistico degli Indicatori PNRR – I semestre 2023, 11 October 2023).

Within this context, mediation represents a major attempt to reduce the time of the process in Italy. Thus, it is one of the reasons its recourse has increased since the latest reform, the so-called Riforma Cartabia (implemented by Law No. 206 of 26 November 2021, which delegated the Government to adopt a discipline to reduce the time needed for civil proceedings, a discipline that came into force with Legislative Decree No. 149/2022. It has, in short, increased the subjects subject to mediation and introduced administrative and fiscal incentives, and procedural sanctions in the event of non-participation without a justified reason).   

Mandatory mediation in Italy

Even if a judicial attempt of conciliation is foreseen within the process (Articles 185, 185-bis, and 420 of the Italian Code of Civil Procedure), mediation offers an ADR resolution aimed at the negotiated search for an amicable agreement that satisfies the parties' interests.

Most of the Italian legislation on ADR has its origins in the EU framework guaranteeing access to justice to consumers, which was first developed in the 90s with the Commission's Green Paper on Consumer Access to Justice (Commission of the European Communities, Green Paper: Access of Consumers to Justice and the Settlement of Consumer Disputes in the Single Market, 16 November 1993). In particular, the transposition of the Communities' Directive on mediation (Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters [2008] OJ L136/3) led the Italian Government to promote mediation as a faster and cheaper alternative resolution mechanisms as for civil and commercial disputes (On the origins of Italian mediation and European Consumer Law, cf.: G Romualdi, Problem-Solving Justice and Alternative Dispute Resolution in the Italian Legal Context, (2018) 14(3) Utrecht Law Review 53): The Legislative Decree (according to Article 76 of the Italian Constitution, a Legislative Decree is an act having the force of law which is adopted by the Government after a law delegation operated by the Parliament that lays down its subject matter, limits, principles and time limits) No. 28/2010, (“d.lgs. 28/2010”), gave the first uniform regulation on mediation involving rights which can be freely disposed of (the so-called “diritti disponibili”).

The most used form of mediation in the Italian legal system is mandatory mediation which differs voluntary mediation as it serves as a prerequisite for the admissibility of the legal claim in certain matters. According to Article 5, paragraph 2 of d.lgs. 28/2010, the satisfaction of such a condition should be verified by the judge in limine litis.

Indeed, the main aim of d.lgs. No. 28/2010 was to decrease the length of legal proceeding by introducing a mandatory extra-judicial mediation attempt as for the litigious matters that represent the main workload within the Italian legal system, notably the following ones: condominium disputes, rights in rem, division, inheritance, family agreements, renting and commodate contract, renting of a company, damages arising from medical and healthcare liability and defamation through the press or by other means of advertising, insurance, banking, and financial contracts (It has to be highlighted the challenge of Article 5, paragraph 1 of d.lgs. No. 28/2010 before the Constitutional Court, which stated on the unconstitutionality of the mandatory mediation attempt as well as on other provisions connected to the mandatory attempt due to an excess of delegation by the Government, based on Article 76 of the Italian Constitution. Mediation is then reintroduced within the Italian legal system with Decree No. 69/2013, converted into Law No. 98/2013).

Among the different modifications introduced by Legislative Decree No. 149/2022, the matters for which mandatory mediation is prescribed have been extended to: association through participation (“associazione in partecipazione”), consortium and franchising agreements, services contracts (“contratto d'opera”), network, supply agreements, disputes among members of a partnership and sub-supply agreements.

Non-participation in mandatory mediation permits the judge to take into account the extrajudicial conduct of the party in the mediation process and, in particular, to use the party's non-participation as an evidence (Article 12-bis, d.lgs. n. 28/2010). Furthermore, a party that fails to participate in mediation risks being ordered to the pay an amount equivalent to the court fees due for the trial (so-called “contributo unificato”). In this event, and upon requested by a party, the judge may as well order the non-participating party to pay the other party an amount, fairly determined which do not exceed the costs of the proceedings, incurred after the conclusion of the mediation procedure. Therefore, it is essential to establish whether the mandatory mediation has been accomplished or not.

In this regard, the Court of Appeal of Rome (Corte d'Appello di Roma, Judgment No 7272/2023, 13 November 2023) recently ruled that mandatory mediation should be regarded to be effectively carried out even in situations where the different procedure of assisted negotiation (assisted negotiation is an ADR regulated by Legislative Decree No. 132/2014. The discipline takes over that of mediation as both institutions are based on the same rationale of deflating the workload on judicial offices) is provided for by the judge. Notably, because mandatory mediation involves the presence of an impartial third party, namely the mediator, it offers a greater guarantee in comparison to assisted negotiation, in which the sole lawyers of the parties assist their clients to reach a common agreement. Therefore, opting for mediation instead of assisted negotiation cannot be a ground for deeming the legal claims inadmissible. 

The Court further elucidates its decision by referring to the ratio legis of the sanction of non-admissibility of legal claims which is not intended to eliminate trials with formal decisions (“sentenze di rito”) but rather addresses actions in which all possible efforts have not been made to avoid going to court.

The assistance of a lawyer is crucial within the procedure of mandatory mediation, the question concerning the use of documents within a subsequent legal proceeding, in the absence of a mediation agreement, should be addressed. 

Mediator's and lawyer's role and external confidentiality in Italy

Mediation is characterised by the intervention of an independent and neutral third party, which is registered by the Ministry of Justice. As further detailed, the latter establishes standards for mediation providers, the means of registration, and mediation fees. The mediation procedure requires the participation of the lawyers as well as the parties, which is mandatory whenever the mediation is a condition of admissibility as per Article 5, d.lgs. No. 28/2010.

In this regard, the assistance of lawyers became expressly provided after the challenge of Article 5, paragraph 1, d.lgs. 28/2010 before the Constitutional Court. In fact, Article 12, paragraph 1, d.lgs 28/2010 as reformed by Decree No. 69/2013 foresees, for the agreement reached by the parties, the signature of both the parties and their lawyers (Please note that the introduction of mandatory legal representation was object of discussions resulting from the antinomy of the legal provisions of d.lgs. 28/2010 introduced by Decree No. 69/2013. The mandatory nature of the lawyers' presence to the mediation process resulted unequivocally from the literal interpretation of the texts according to some case-laws, as Tribunale di Torino n° 1770, 30 March 2016 and Tribunale di Vasto, n°701/17, ordinanza riservata of 9 April 2018. The Interpretative Circular of 27 November 2013 of the Ministry of Justice, prot. N° 1683229, has subsequently clarified that the lawyers' assistance has to be considered as mandatory only in the cases of mandatory mediation, therefore excluding those of voluntary mediation where the parties have the choice of being assisted by lawyers). The latters have the role in attesting the compliance of the agreement with mandatory rules. Consequently, it should be essential for lawyers to act to the resolution of the conflict, taking into account the real interests of the parties. However, according to authoritative doctrine, in the Italian litigation's context, lawyers would apply an “adversarial approach” which perpetuates the conflict and can undermine the effectiveness of mediation practices (G Conte, The Italian Way of Mediation, 2014, Yearbook on Arbitration and Mediation 195).

It should as well be mentioned that as per Article 16 d.lgs. 28/2010, lawyers, which are members of the Bar, are mediators “by right”, however in order to practice as civil and commercial mediators, they must receive adequate training in mediation and remain updated by theoretical and practical training courses, in accordance with Article 62 of the Forensic Code of conduct (This article states that a lawyer acting as a mediator must comply with the obligations set out in the relevant legislation and the provisions of the mediation body).

Another main obligation to which lawyers are subject consists in the respect of the confidentiality. According to Article 10, paragraph 1, d.lgs. 28/2010, statements made or information acquired in the course of the mediation proceeding may not be used in the judicial proceeding, having the same petitum, after the failure of the mediation. The sole exception to this principle is the consent of the party from which the statement or information originated.  

This principle of external confidentiality is based on the obligation of secrecy that remains even after the conclusion of the mediation procedure. The application of external confidentiality ratione personae covers all those who have had dealt with the procedure itself and entails a prohibition on the production of documents containing statements or information acquired in the course of the mediation process.

From a more pragmatic perspective, certain documents do not fall under the aforementioned prohibition of producibility, and notably the application for mediation and the parties' consent to it. In fact, these documents enable the verification of the causa petendi and petitum of the mediation procedure with the subsequent legal action.

With reference to the minutes of mediation, confirmed case law deems their use in court lawful, provided they only document the circumstances pertaining to the parties' participation, thus omitting the substance of the dispute (Tribunale di Roma, Section XIII, Order, 26 January 2016). Consequently, an established practice among mediation bodies has developed consisting of drafting “minimalist” minutes in terms of dispute's content, limiting themselves to reporting the conduct of the parties during the proceedings (Tribunale di Roma, Section XIII, Order, 26 January 2016; M Zanussi, La riservatezza in mediazione: la riservatezza esterna, 20 February 2024).

Should this practice result in a blurred of the boundary between documents which can be produced in court and those covered by confidentiality, it seems that case-law highlights the maximisation of the confidentiality of the parties. This can also be opposed to the lawyers of the parties themselves in the case of a violation of Article 10 of d.lgs. 28/2010, which could also result in lawyer's disciplinary action for a breach of the duty of secrecy and confidentiality, as set out in the Forensic Code of Ethics (Tribunale di Milano, Judgment No 6826, 22 August 2023).

Mediation in Türkiye

In Türkiye, mediation for civil disputes has been primarily regulated to ease the judicial workload, in a manner similar to that observed in Italy. As part of globalization, the privatisation of justice services and the acceptance of non-judicial resolution methods as solutions to the judiciary's burden have spread from the United States to Europe (B Clark, Lawyers and Mediation (Springer 2012) 9; M de Boisseson, Thoughts on the Future of ADR in Europe: A Critical Approach (1999) 15(4) Arbitration International 349–357; AG Usluel, Mandatory or Voluntary Mediation? Recent Turkish Mediation Legislation and a Comparative Analysis with the EU's Mediation Framework (2020) Journal of Dispute Resolution 447; K Bakırcı, “Alternatif” Bir Uyuşmazlık Çözüm Yolu (Arabuluculuk) Aracılığıyla “Alternatif” İş Hukukuna Doğru (2019) 31(140) Türkiye Barolar Birliği Dergisi 357). As mentioned above, the enactment of the Turkish Mediation Law was a part of this movement in Continental Europe.

According to official records from 2023, the number of mediation files has almost tripled from 416.747 to 1.271.841 since 2018, and the ratio of success, which is two-thirds, remains relatively stable over the years, which is promising data on the success of the Turkish Mediation Law (Ministry of Justice of the Republic of Türkiye, General Directorate of Criminal Records and Statistics, Justice Statistics 2023 (2023) in adlisicil.adalet.gov.tr). However, the procedural requirements of mediation have been the subject of criticism on the grounds of their flaws, and the impact it has on the right to access justice remains a significant concern.

The mediation procedure in Türkiye will be first introduced, and then the examination of landmark decisions of the Supreme Court of Cassation of the Republic of Türkiye (the Court of Cassation) regarding the procedural requirements of mandatory mediation will be conducted. As the authors share our opinions on the implications of the Turkish Mediation Law in practice, the authors will leave some parts of our evaluation of the examined matters to the comparison part.

Mandatory mediation in Türkiye

The Turkish legal system employs two approaches for amicably resolving civil disputes: the first is voluntary mediation, regulated by the Mediation Law, and the second is mandatory mediation, which was also incorporated into the Turkish Mediation Law, as amended in 2018. There are some differences between voluntary and mandatory mediation, most prominently the scope of the mandatory mediation.

Almost all civil disputes concerning rights that can be freely disposed of are within the scope of the Turkish Mediation Law, except for family disputes with claims of violence. Regarding the scope of mandatory mediation, it was initially introduced by the Labour Courts Act for labour disputes and subsequently extended to encompass other civil disputes, including commercial and consumer disputes. The following analysis will focus on the procedural side of the mediation regulation instead of its scope of application.

Differences between mandatory and voluntary mediation traditionally include their initiation. Different regimes under the Turkish Mediation Law govern the initiation of mandatory and voluntary mediation procedures.

According to Article 16 of the Turkish Mediation Law, voluntary mediation begins when the parties agree to resolve their dispute through mediation. In contrast, when the application for mediation is made after the filing of a lawsuit, the mediation process begins on the date when the parties accept the court's invitation to mediation or when the parties declare in writing to the court outside of a hearing, that they have agreed to apply to mediation, or when this declaration is recorded in the minutes during a hearing. Parties can choose any registered mediator for voluntary mediation.

Regarding mandatory mediation, Article 18A prescribes that only certain mediators, listed according to their qualifications, can be assigned by the courthouse mediation bureau (adliye arabuluculuk bürosu) upon a mandatory mediation application by the parties or parties can choose their mediator from the official lists. A mandatory mediation session begins on the date of this assignment. The importance of this difference lies in the trust placed in the qualifications of the assigned mediator, which is intended to protect weaker parties in disputes where mandatory mediation is required.

Although these processes are regulated differently, the Turkish mediation authority, the Mediation Department, which operates under the Directorate General for Legal Affairs of the Ministry of Justice, recently announced that a dispute resolved through voluntary mediation cannot be subject to a mandatory mediation application (The Mediation Department, Announcement (5 March 2021 in adb.adalet.gov.tr). This decision effectively eliminates the distinction regarding the initiation of mediation between mandatory and voluntary mediation.

Another difference between mandatory and voluntary mediation has been modified. The Turkish Constitutional Court had previously ruled that Article 18A/11 of Law No. 6325 on Mediation in Civil Disputes is unconstitutional, effectively annulling the provision that imposed full liability for litigation costs on a party who failed to attend the initial mediation session without a valid excuse, even if that party was later found to be in the right (Constitutional Court of the Republic of Türkiye, Decision No 2023/160E, 2024/77K, 14 March 2024).

However, seven months after the Constitutional Court's decision, Law No. 7531 reintroduced a similar penalty with lighter consequences (Law No 7531 of 7 November 2024, Türkiye). Under the amended Article 18A/11, a party who fails to attend the initial mediation session without a valid excuse is now liable for half of the litigation costs that the opposing party is obliged to pay, even if that party was later found to be in the right. Additionally, only half of the attorney fees determined according to the Minimum Attorney Fee Tariff will be awarded in favor of this party.

It should be noted that, unlike fees for voluntary mediation, which should be shared equally by both parties unless otherwise agreed according to Article 7 of the Turkish Mediation Law, fees for mandatory mediation are paid from public funds in cases where no agreement is reached according to Article 18A/13, which is the fee for the equivalent of a two-hour session. If the mediation lasts longer than two hours, the fees for the additional time must be equally divided between the parties.

The reintroduced provision is the primary incentive for parties to participate in mediation sessions and experience its practical benefits. Given that one of the key objectives of mandatory mediation was to introduce the public to its advantages, this reintroduction plays a vital role in the mandatory mediation process. Without such a provision, mandatory mediation would become a mere bureaucratic step to complete before filing a lawsuit.

Regardless of having a sole mandating provision, mediation carries other problems for disputes where it is mandatory concerning its highly procedural nature. There are various procedural aspects of the mediation subjected to disputes, such as the issue of which the civil court of peace has jurisdiction to review objections related to the jurisdiction of the courthouse mediation bureau.

Such a specific point became a matter of dispute because the mediators in mandatory mediation should be assigned by the courthouse mediation bureaux depending on the region in which they are registered, and parties can object to the courthouse mediation bureaus' jurisdiction after the assignment at the latest in the first meeting according to Article 18A/8 of the Turkish Mediation Law. This creates a burden for the mediation procedure that doesn't fit its fast and easy alternative dispute resolution method nature. It also doesn't align with the objectives of the Turkish Mediation Law, which is introducing the comfort and beneficial aspects of mediation to the public.

The way it is prescribed in the regulation links the mediation procedure to legal matters that should be only a part of the procedural review of the lawsuits. Because the jurisdiction of the courthouse mediation bureau depends on the jurisdiction of the courts regarding the subject matter of dispute (Article 18A/4). Furthermore, it stipulates that objections regarding the jurisdiction of the courthouse mediation bureaus must be brought to the civil courts of peace. But even worse, under the Turkish Mediation Law, it is not clear which civil courts of peace have jurisdiction to review such objections. To give an example of this issue, the authors will examine a Court of Cassation ruling.

The Court of Cassation has resolved the discrepancy between the two civil courts of peace decisions, where each ruled that the other had jurisdiction (Court of Cassation (Yargıtay) 5th Civil Chamber, Decision No 461/4337 (29 March 2021). The Court of Cassation ruled that although it is not clear which court should review such objections under the Turkish Mediation Law, it should be determined according to the criteria of which commission the assigned mediator registered. The Court of Cassation referred Article 25/4 of the Turkish Mediation Law Directive, which stipulates only that “[…] While examining the objection […], the court shall take into consideration the commission where the appointed mediator is registered in the list, not the office that made the appointment […]” as the ground for this decision.

Even after a decision on the jurisdiction of the courthouse mediation bureau, the jurisdiction of the courts regarding the subject matter of disputes can be subject to the objection of parties during the court proceedings after the mandatory mediation phase. Thus, such procedural and unfitting burden for mediation should be removed, and Turkish Mediation Law must be amended to switch to an electronic assignment and meeting system which doesn't require any physical meeting.

Despite the Court of Cassation's efforts to resolve jurisdictional discrepancies, procedural complexities in the mediation process persist. It is common to encounter discrepancies between Court of Appeal decisions on the same procedural matters regarding the mediation requirement. To illustrate this ongoing issue, the authors will examine a Court of Cassation decision that addresses such inconsistencies between different Court of Appeal rulings. Before that, it is important to note that resolving these kinds of differences requires bringing them to the attention of the Court of Cassation. This process can be time-consuming, undermining legal certainty for individuals and creating challenges for both courts and mediators responsible for applying the Mediation Act.

In resolving discrepancies between different Court of Appeal rulings, the Court of Cassation addressed the proper procedure for the invitations of the initial mediation meeting and their impact on mandatory mediation as a prerequisite for litigation. One Court of Appeal ruling stated that the mediation prerequisite was not fulfilled because the defendant could not be properly reached despite the mediator's documented attempts to send an invitation. As a result, it deemed the initial meeting invitation insufficient and concluded that a proper mediation application had not occurred, meaning the mediation requirement was not fulfilled.

In contrast, the other ruling focused on the plaintiff's right to seek legal remedies, stating that any irregularities in the mediator's invitation should not penalize the claimant. It emphasized that the mediator is responsible for properly inviting the parties and that the claimant should not bear the consequences of any deficiencies in this process.

The Court of Cassation resolved the discrepancy in favour of the second ruling, emphasizing that the mediator's duty is to document efforts to invite parties using the provided contact information. They concluded that an improper invitation does not negate the fulfilment of the mediation prerequisite, aligning with the legal intent to protect individuals' access to justice without undue procedural burdens.

It should be noted that the dispute examined above involves Article 18A/7, which prescribes the procedure for initiating mediation and is noted for its vague wording. The provision states: “[…] The mediator shall inform the parties of their appointment and invite them to the first meeting by using all means of communication to the best of their knowledge […]”. This ambiguity, as noted in legal doctrine, necessitates amendments to ensure legal certainty if the existing highly procedural mediation system is to be maintained (Usluel n. 19 465).

Mediator's and lawyer's role and external confidentiality in Türkiye

As it is in Italy, mediators are independent and impartial third parties registered by the Ministry of Justice.  Unlike in Italy, the mediation procedure doesn't require the participation of the lawyers as well as the parties. This is a highly criticized point, especially for disputes with weaker parties, such as labour and consumer disputes, in which mediation is mandatory (T Canbolat, İş Hukuku Bakımından Arabuluculuk in E Erdoğan, ed, Arabuluculuğun Geliştirilmesi Uluslararası Sempozyumu, Ankara 2019, 96–97; Bakırcı, n. 19, 375). It would be better to mandate the participation of lawyers for the weaker parties in order to protect them from the negative effects of the imbalance in the dispute.

To qualify as a mediator in Türkiye, one must be a Turkish citizen, a lawyer with at least five years' experience, be fully competent, have completed the requisite mediation training, and successfully passed a written examination administered by the Ministry of Justice, as stipulated in Article 2 of the Turkish Mediation Law.

Given that the role of the mediator is primarily to assist the parties in finding their own solutions, the requirement to be a Turkish citizen appears to unduly restrict the potential benefits that experienced foreign mediators could bring to the Turkish system, particularly in alleviating the workload of the judiciary and promoting social harmony (MA Tunca, İş Uyuşmazlıklarında Türkiye'de ve Farklı Hukuk Düzenlerinde Arabuluculuk, Ankara 2023, 51). Also, finding a meaningful ground for the requirement of being a law graduate with at least five years of experience is quite challenging. 

This requirement excludes non-lawyers who have demonstrated success as mediators in other countries from contributing their expertise. Such individuals could offer significant value in achieving the objectives of the Mediation Act by successfully assisting parties in resolving their disputes.

In addition to the roles of mediators and lawyers, another key aspect of mediation that must be addressed is confidentiality. Confidentiality is essential in mediation as it allows parties to actively engage in finding solutions during sessions without fear of losing ground in potential court proceedings.

Confidentiality requires all parties to keep any information acquired during mediation confidential. In the event of a breach of confidentiality, mediators, all parties and their legal representatives, and others permitted by the parties to participate in the mediation sessions may incur criminal and civil liability (For further information regarding civil and criminal liability: Usluel, n 19, 451).

It should be noted that when mediation is mandatory for a dispute, submitting the mediation final report to the court is an obligation. According to the Court of Cassation, submitting this final report, which is required to fulfil the mediation prerequisite, does not violate the prohibition against using statements and documents obtained during mediation proceedings (Court of Cassation, Yargıtay, 9th Civil Chamber, Decision No 3222/3813, 21st March 2022).

Comparative analysis

After having analysed mandatory mediation in both Italy and Türkiye, this paper will examine the legal requirements established by the two legal systems to qualify as a mediator, with a particular emphasis on the importance of ongoing training. Such training is crucial for mediators to acquire and maintain the necessary skills to effectively facilitate dispute resolution.

The paper will also explore the compliance of mandatory mediation with the European right to a fair trial. Since this issue remains debated, there is a need to consider whether mandatory mediation, if not properly regulated, could interfere with the individual's right to court access and potentially challenge fundamental legal protections.

Access to the role of mediator

Mediators must be skilled in fostering a collaborative environment, guiding discussions constructively, and helping parties navigate their differences toward mutually agreeable solutions. Such capabilities are far more indicative of a mediator's effectiveness than the length of time elapsed after graduation.

The five-year experience requirement in Türkiye seems to serve more as an unnecessary barrier for new law graduates rather than a meaningful measure of competency.  It merely imposes a time constraint rather than facilitating the acquisition of relevant expertise. Since this requirement does not enhance the qualifications of mediators or align with the objectives of the Mediation Act, it should be revoked.

What is more crucial than mere years of experience is the mediator's ability to possess strong communication skills and a solid understanding of human psychology. These qualities are essential for differentiating the dynamics of a mediation session from court hearings, where the objective is not to determine a winner or loser but to achieve an amicable resolution. Unlike Türkiye, Italy doesn't impose such restrictions for non-lawyers and new law graduates.

In Italy, Ministerial Decree No. 180 of 18 October 2010, as amended by Ministerial Decree No. 139 of 4 August 2014 (“d.m. n. 180/2010”), sets professional qualification requirements for being a mediator. To become a mediator, a non-lawyer must have a three-year undergraduate degree or be a chartered professional (Romualdi n 8 56), comply with the requirements of honourability as detailed by d.m. No. 180/2010 and attend 50 hours of theoretical and practical training, and complete a written examination. New mediators must attend at least 20 mediation sessions within the first two years and attend at least 18 hours of refresher training every two years (G De Palo et al, Rebooting the Mediation Directive: Assessing the Limited Impact of Its Implementation and Proposing Measures to Increase the Number of Mediations in the EU 2014 in bit.ly, 44).

The centres that issue mediation certificates must also be accredited centres registered with the Ministry of Justice (Erasmus+ Strategic Partnership Project, Online Study Platform on Mediation: Requirements to Become and Be a Mediator in Italy in mediation.turiba.lv). There has yet to be an official public register of mediators in Italy. In fact, the Italian Ministry of Justice only publishes the list of registered mediators in accredited mediation centres (Romualdi n 8 56).

For mediation to succeed as an amicable dispute resolution method and achieve the legislator's intended outcomes, while also becoming widespread, the mediator must demonstrate a high level of competence (Conte n 14 200–201). Hence, the training of mediators is an essential issue for achieving the mediation objectives.

Although training courses are already foreseen by d.m. No. 180/2010, the majority of the doctrine argues that ADR training courses proved to be inadequate (G. Matteucci, Italy Is Doing It – Should We Be? Civil and Commercial Mediation in Italy in Contemporary Tendencies in Mediation, Dykinson, Universidad Carlos III de Madrid 2015 205). In fact, if such theoretical and practical training (including the final exams) is enough to inform, it is inadequate to form future professionals in order to be equipped with the necessary skills and knowledge to effectively engage in mediation practices. According to leading scholars, training courses should be reorganized so that mediating lawyers can learn that the mediation process is not a trial, and a curriculum should be prepared to provide mediators with the necessary communication skills and basic psychological knowledge (Romualdi n. 8 61).

The lack of theoretical and practical training for mediators has been confirmed by the report of the "Commission for the Preparation of Proposals on Civil Litigation and Alternative Dispute Resolution Methods" (Ministry of Justice, Legislative Office, Commissione per l'elaborazione di proposte di interventi in materia di processo civile e di strumento alternativi, Pres Francesco Paolo Luiso, 24 May 2021, 25), tasked with evaluating the quality of the mediation service taking into account that this requires, among others, renewing and strengthening the initial and continuous training of professionals in order to ensure the effectiveness of the justice system in civil disputes. The Commission recommends, on the one hand, that the mediators' theoretical and practical training should be intensified and, on the other hand, to coordinate with training at the university level in order to enrich the preparation of lawyers with a culture of peaceful and co-existential conflict resolution.

This approach aligns with the idea of the leading doctrine, which further underlines that the minimum training period for becoming a mediator in Italy is insufficient and should be increased from 50 to 200 hours (G Matteucci, ADR and Civil Proceeding in Italy 2021, Potential Developments Commissione Luiso/Meios Alternativos de Resolução de Conflitos e Processo Civil na Itália no Ano de 2021: Potenciais Desenvolvimentos pela Comissão Luiso (2021) 22(3) Revista Eletrônica de Direito Processual 407).

Since communication and interpersonal skills are essential for amicable conflict resolution, a substantial revision of the training requirements in both legal systems would be welcomed to ensure a mediation service characterized by highly competent and skilled practitioners, as such performance would encourage parties to choose mediation over pursuing litigation against each other.

Expenses of the mediation and its impact on access to Justice

Article 6 of the European Convention on Human Rights (“ECHR”) guarantees the right to a fair trial and includes several fundamental protections, such as the right of access to a court (Although the right of access to a court is not explicitly stated in the text of Article 6, the ECHR has established it through its case law, notably: Golder v United Kingdom App No 4451/70, ECtHR, 21 February 1975). Drafting mediation as a prerequisite for applying has been criticized as a violation of an individual's right of access to a court. However, the European Union Court of Justice (“EUCJ”) has determined that mandatory mediation does not inherently breach the right to effective judicial protection (Judgment of the Court, Fourth Chamber, 18 March 2010, Case C-317/08 Rosalba Alassini v Telecom Italia SpA EU:C:2010:146).

According to the EUCJ, mandatory mediation aligns with EU law if it contributes to reducing the judiciary's caseload in the public interest, offers a swift and cost-effective means of resolving disputes, and no alternative method exists that is equally effective in achieving these objectives. It also should not make it impossible or excessively difficult for individuals to access the courts. From this perspective, an analysis will follow on whether the thresholds set in the aforementioned ruling were met in the Italian and Turkish mediation applications.

The mandatory nature of mediation regulations in Italy and Türkiye, as stated before, only means that parties have to support all the litigation costs in case of their non-participation in the first meeting. To such a sanction it follows that within mandatory mediation, the parties are not forced to participate in an effective way in the first session of the mediation meeting but merely being present in order to state they are opting out in case they don't want to find a solution for their dispute in mediation (G De Palo, Mediating Mediation: The Easy Opt-Out Model (2020) 4 Tijdschrift Conflicthantering 25). According to leading scholars (Conte n. 14 191), such an opt-out system giving the parties the discretion to apply to court right after the first mediation meeting is aligned with the protection of the right of access to a court. Nevertheless, the respect of the right of access to a court should also be analysed in light of the total expenses supported by the parties.

One of the main advantages of mediation is the avoidance of legal costs generated by a court proceeding. In fact, mediation offers to the parties a cheaper alternative, reducing legal and administrative costs. However, a major distinction should be made between voluntary and mandatory mediation. In fact, in the first case, parties benefit from a financial advantage, besides, in the second scenario, parties should bear all costs of the procedure.

In Italy, if the dispute falls within the scope of Article 5 of d.lgs No. 28/2010, the parties shall proceed to a first meeting of mediation before filing a lawsuit. In this meeting, the mediator informs the parties about the procedure of the mediation and invites them to evaluate whether to proceed with the judicial claims. Following the entry into force of the Ministerial Decree n. 150 of 24 October 2023 (“d.m. n. 150/2023”), which introduces a new legislation concerning mediation and, notably, raised the amounts of the costs for mediation, there has been an increase in the overall costs to be borne by the parties for mandatory mediation.

The excessive costs of the mediation procedure may result in a denial of access to justice, especially when the mediation is prescribed as mandatory by the national legal system. In this sense, the EUCJ replied to the prejudicial question concerning mandatory mediation provided for by Italian law in consumers' disputes (Judgment of the Court, First Chamber, 14 June 2017, Case C-75/16 Livio Menini and Maria Antonia Rampanelli v Banco Popolare Società Cooperativa EU:C:2017:457). The EUCJ precised that although directive 2013/11 (Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on Alternative Dispute Resolution for Consumer Disputes (Directive on Consumer ADR, [2013] OJ L165/63) provides, in Article 1 the possibility of providing mandatory mediation “on a voluntary basis”, Member States have discretionary power regarding the imposition of mandatory participation in an ADR “provided that such legislation does not prevent parties from exercising their right of access to justice” (Judgment of the Court, First Chamber, 14 June 2017, Case C-75/16 Menini and Rampanelli n. 44 para 48). In fact, according to the EUCJ, what matters is not “whether the mediation system is mandatory or optional, but whether the parties' right of access to justice is preserved” (Judgment of the Court, First Chamber, Case C-75/16 Menini and Rampanelli n. 44 para 51). In order to guarantee the right of access to justice, Member States should offer certain conditions along with the mandatory mediation, such as the absence of a binding decision for the parties, no substantial delay in the lodging of a judicial remedy, suspend the limitation period for the rights concerned and do not give rise to any costs for the parties (or at list minor costs)( Judgment of the Court, First Chamber, 14 June 2017, Case C-75/16 Menini and Rampanelli n 44 para 61).

On the light of this case law, it is particularly significant the decision of the Tribunale di Verona (Tribunale di Verona, Section I, Order, 24 November 2023), which has held that mandatory mediation is incompatible with the European principle of effective judicial protection as established by Articles 6 and 13 of the ECHR, and Article 47 of the Charter of Fundamental Rights of the European Union. Indeed, the national regulation on mandatory mediation does not comply with the requirement of not generating substantial costs, as it also mandates compulsory legal assistance, resulting in significant expenses for the parties involved.

The Tribunal further precise that d.m. n. 150/2023 has introduced significant modifications concerning expenses and fees for mediation activities: the solely initial expenses (“spese di avvio”) range from EUR 40 to EUR 110, while mediation costs (“spese di mediazione” including the mediator's fee) vary according to the value of the dispute, amounting to between EUR 60 and EUR 170. Even considering the reductions foreseen in cases of mandatory mediation, the cost of mediation (supposing that it ends on the first meeting) ranges from a minimum of EUR 360 to a maximum of EUR 1,500, depending on the value of the dispute.

As mentioned above, in Türkiye, there are some cost advantages for mandatory mediation, which allow parties to participate without any monetary concern and easily opt out of the first mediation session. The fees for this first mandatory mediation session are paid from public funds, which is the fee for the equivalent of a two-hour session, ranging from approximately 30 EUR to 100 EUR (These amounts have been presented according to the current 2024 Mediation Minimum Fee Tariff as of the date of writing this article, calculated based on the average value of the Turkish Lira against the Euro in 2024).

Considering the fact that the Turkish mediation system allows parties to easily opt out from mandatory mediation, gives cost advantages, and sets reasonable time limitations for the mediation period, it is clear that it doesn't make access to the courts impossible or excessively difficult. From this perspective, the Turkish mediation system aligns with the requirements set out in the EUCJ ruling and doesn't exhibit a trend of increasing costs as seen in Italy.

Conclusion

Mandatory mediation in Italy and Türkiye represents a significant shift towards enhancing judicial efficiency by promoting amicable dispute resolution, which is mediation. However, the implementation raises critical questions about mediator qualifications, procedural complexities, and the right of access to justice as enshrined in ECHR.

In Italy, the increased costs associated with mandatory mediation may pose a financial barrier, potentially infringing upon the right to a fair trial. Conversely, Türkiye's approach offers cost advantages and a more straightforward opt-out mechanism, aligning more closely with European Court of Justice guidelines on preserving court access. However, the highly procedural mediation mechanism poses a problem against the legal security of all.

The main question is whether mandatory mediation aligns with European principles or if it creates an economic barrier for citizens seeking access to justice. While this issue remains a topic of ongoing debate, it prompts reflection on how to balance the need to reduce the workload of the courts and the time required for conflict resolution with ensuring access to justice and fairness in the mediation process, for both citizens and legal practitioners.

Decades before the introduction of mediation as a prerequisite in the Italian and Turkish legal systems, authoritative doctrine argued that the use of alternative dispute resolution methods has the potential “[…] to increase the workload of courts by giving rise to yet another set of issues to litigate [...]” (OM Fiss, Against Settlement, 1984, 93 Yale LJ 1073). As predicted in Türkiye, mandatory mediation has caused a variety of legal problems, many of which have not been settled by legally binding court decisions due to the complicated structure of the Turkish judicial system.

It is possible to argue that mediation is losing its flexibility due to this highly procedural structure, and therefore, it loses its advantages over the alternatives it was meant to replace, namely arbitration and litigation (De Boisseson, n 19 353). Both legal systems face challenges in mediator training and qualification standards. Enhancing training programs and reconsidering qualification requirements could improve mediation outcomes in both countries.

Balancing judicial efficiency with fundamental legal rights should be the foremost concern when amending the existing mediation systems in both countries. By addressing procedural hurdles, ensuring affordability, and investing in mediator competencies, Italy and Türkiye can strengthen their mediation frameworks. Such improvements will not only reduce judicial workloads but also uphold the principles of justice and fairness essential to democratic societies.