Prof. Dr. Turgut Tarhanlı

 

The start of the mediation practices in Istanbul Bilgi University Faculty of Law can be traced back to the first half of the 2000s. Although this beginning was not yet of an institutional structure, it should be allotted to the studies carried out by the three faculty members of the Faculty, thanks to the qualification and formation they obtained by participating in international programs in this field.

 

At that time, the acceptance of this subject as a course included in the undergraduate and graduate programs of Bilgi Law Faculty was a concrete, academic and institutional step. Parallel to this, it is worth mentioning that, in the same period, a basic reference source for the acquisition of negotiation skills was translated into Turkish with the initiative of Bilgi Law Faculty.

 

The book titled Getting to Yes: Negotiating Agreement Without Giving In (Penguin: New York, 2nd Ed. 1991) which was co-authored by Roger Fisher, who is considered to be the father of the conflict resolution theory and its practice and is a Harvard Law School faculty member and the director of the Harvard Negotiation Project, and William Ury; and was prepared under the editorship of Bruce Patton, was among the publications of our university and made several editions: “‘Evet’ Boyun Eğmeden Anlaşmaya Varmak (Istanbul Bilgi University Press: Istanbul, Edited by İdil Elveriş, Translated by Fatma Güven Burakreis, 3rd Ed., 2016 [1st Ed., 2008]).

 

The fact that this book was published in Turkish was meaningful for me personally as it was academically and professionally. Because in the 1990s, I had the opportunity to work with Professor Roger Fisher as part of the Harvard Negotiation Project, and it was a very special gift that he, as an elegant gesture, signed and presented an original copy of this book to me.

 

In the 2000s, Bilgi Law Faculty organized mediation-themed events during even the preparation and discussion stage of the relevant legislation, with the participation of the Ministry of Justice, Bar Associations, and law faculty members. In an environment where there was not enough knowledge and experience on "Alternative Dispute Resolution" (ADR) methods in general, the organization of these events also had a function to broaden the decision makers’ horizons and to diagnose and solve the main discussion topics and problems.

At that time, the main discussion about the inclusion of the mediation method into our law and its application was considered to be a bilateral discussion between those who defended that the people to have the "mediator" qualification should be limited to those who received legal education and those who defended that the experts, especially the ones that had social sciences background, could have this qualification alongside the lawyers. There was also another attitude in which a more radical group of legal professionals was completely against the adoption of such a method.

The fact that people and institutions with the aforementioned remarks clearly expressed the theses they defended in the academic and professional events we organized, as Bilgi Faculty of Law, in terms of Turkey’s decision makers and society, created an important platform, publicly, for the sake of searching the "common good" on this subject or how "public interest" can be defined and shaped.

 

During the second half of the 2000s, in the years when the preparatory work for the legal regulation which would be called “Law on Mediation in Civil Disputes” began, Bilgi Faculty of Law was among the partners of the consortium which was approved to conduct the project titled as Technical Assistance for Better Access to Justice in Turkey and which was supported by the European Union (EU). The leadership of the project, of which the Ministry of Justice was the beneficiary, was undertaken by ADR Global. This project is of high importance since it is the first EU-supported project that is valuable in terms of including alternative dispute resolution methods.

 

The first Mediation Program within Bilgi Faculty of Law was launched on 8 October 2013, with the permission of the Ministry of Justice Mediation Department. A year after this, again with the permission of the Ministry and with the instructor staff who had expertise in the field of mediation of Bilgi Faculty of Law, it was decided to initiate these professional and skill-oriented training also in cities other than Istanbul. By doing so, the aim was to spread this professional formation training, which was new at the time in Turkish legal practice, to a wider circle.

 

So, the first Mediation Program which had started in 2013 and the trainees who participated in the programs held after that, achieved high success scores in the mediation exams organized by the Ministry. The average success rate in this exam, which was held after the completion of the first training program, was 82 points. This level of success was maintained in the following years too.

 

At first, the training location was the Dolapdere (Beyoğlu) Campus of Istanbul Bilgi University, which at the time included the Faculty of Law building. With the moving of the Faculty of Law in the fall semester of 2017 to the santralistanbul campus of the university (Eyüpsultan) which is located in the Former Silâhtarağa Power Plant area, The Mediation Program continued in the Faculty building, which originally had been prepared by architect Seyfi Arkan in the 1940’s, and was renovated by prominent architect Nevzat Sayın from an industrial site to a building for education and research.

The Mediation Program organized by Bilgi Faculty of Law was continued through fundamental training programs, renewal programs on mediation, and specialization trainings, i.e., Labor Law. None of these programs had a static content or a methodology. It is a necessity to provide the mediator candidates with the basic knowledge and skills required by the Ministry's accreditation. However, in addition to this, some revision and renewal studies have been made in the content of the course program when deemed necessary, with regards to both participant demands and for the sake of the fulfillment of mediation functions, with a view that is aware of the international developments in this field.

 

Fundamental Mediation Training Participant Book (Ankara: Publication of the Council of Europe, Second Edition, April 2019) published within the scope of the project Improving Mediation Practices in Civil Disputes in Turkey, was prepared as a result of the works organized between 2014-2017 with the cooperation of the Council of Europe / European Commission for the Efficiency of Justice (CEPEJ) and the Ministry of Justice. Members of Bilgi Faculty of Law working in the field of mediation took an active part in the Commissions on Legislation, Gender Equality and Ethics during this preparation process.

 

In the years after Bilgi Faculty of Law started the Mediation Program in civil disputes, a mediation center was established within the Beşiktaş Municipality in Istanbul, within the framework of a pilot project developed by jurists that graduated from the Bilgi Program and became mediators as well as members of Bilgi Faculty of Law. The essence of this project was to evaluate the issue of dispute conveyed by the applications of the citizens residing in that area and, if suitable for mediation, to provide them with free mediation services to resolve their disputes by using this solution method. These works which were carried out with the identity of a social center, constitute the first example of practice in this field in our country.

Since the entry into force of “Istanbul Arbitration Centre Arbitration and Mediation Rules of 2015”, by the Istanbul Arbitration Centre (ISTAC), which was established in 2014, Bilgi Faculty of Law has been in close academic and professional cooperation with this institution. A Bilgi Faculty of Law member who is an expert in this field, has been a member of the Istanbul Arbitration Centre National Board since its establishment. Another faculty member, due to the agreement between the two institutions, has acted as the Secretary General of the Istanbul Arbitration Centre for a single term since its establishment. With the implementation of the "Istanbul Arbitration Centre Mediation-Arbitration Rules” (MED-ARB), Bilgi Faculty of Law’s academic and professional experience and knowledge in both mediation and arbitration have become an institutional potential value in this field as well. With the power of this institutional value, academic contributions prepared in various forms for practice and publications were made; moreover, Bilgi Faculty of Law has become a pioneer and a participant in moot court activities which encouraged students to approach this area of law.

 

In addition to providing training programs on mediation pursuant to the mediation legislation, in 2017, upon the application made by the Faculty after the entry into force of the Regulation on Conciliation in Criminal Procedure, Bilgi Faculty of Law has become one of the 15 institutions that have the authorization to provide “conciliator training” in Turkey after the assessment done by the Ministry of Justice. The instructors of this program are faculty members of Bilgi Faculty of Law. Completion of this training is compulsory for those who wish to become a conciliator. Conciliation is known as “victim – offender mediation” in the world and is an alternative dispute resolution method in criminal issues. The application of this alternative method is based on the "restorative justice" approach, which is a method focused on providing the parties of the dispute with the opportunity to participate effectively in the resolution.

 

I would like to emphasize a known principle which is deemed to be a golden rule in the context of alternative dispute resolutions including mediation: the state of “Having a much better option compared to a negotiated agreement”. This situation, which is briefly referred to as BATNA (Best Alternative to a Negotiated Agreement), can in fact be in question for both sides in disputes where alternative dispute resolution methods are applied. And this must be the first fact to be identified by a qualified mediator.

Because, as this is also the case with other alternative dispute resolution methods, the main function of a mediator is the knowledge and skill to be put forward by them to direct and transform the BATNA phenomenon, in which one or both parties to the conflict see themselves as more advantageous over the other party, to the ground of negotiation or mediation. In other words, it is to reach an agreement that the result to be reached through mediation means "having an even better option" compared to BATNA.

 

Bilgi Faculty of Law has maintained an institutional behavior with diligence that is aware of this distinctive feature’s value in all its professional training activities in the field of alternative dispute resolutions.