Author
Topak, Suleyman
Publication Place
Ibn Haldun University -
Ibn Haldun University
Subject
Ibn Khaldun studies journal (Online), 2025-06, Vol.10 (1)
Type
kitap
Language
ara,eng
Digital
Yes
Manuscript
No
Library
Leitir Library
Library Asset ID
ISSN: 2651-379X, EISSN: 2651-379X, DOI: 10.36657/ihcd.2025.136
Record ID
cdi_doaj_primary_oai_doaj_org_article_bea8095a5e114288ad306dcab8d5d3b0
Library Location
DOAJ Directory of Open Access Journals
Notes
In mediation activities, basic principles such as voluntariness, voluntariness, confidentiality, impartiality of the mediator, control of the process by the parties, and equality apply, and it is entirely up to the parties to reach an agreement or not at the end of the process. If an agreement is reached at the end of the mediation activity, it is possible to issue a mediation agreement document between the parties. Although the mediation institution is established on the principle that the parties resolve the dispute amicably in line with their free will, the agreement reached at the end of the process is an out-of-court settlement agreement in terms of its legal nature. In this respect, the agreement document is subject to the general validity conditions regarding contracts. Even though an agreement is reached during the mediation process, it is possible that this document may be invalidated within the period stipulated in the Turkish Code of Obligations, within the framework of the cancellability sanction (TBK Art. 28/2), based on the allegation of impairment of will based on mistake, deception and intimidation (TBK Art. 30-39), especially obscurity (TBK Art. 28/1). Again, in the mediation activity, if the agreement document is signed without the party or voluntary representative having the capacity to act, it is possible for this document to be invalid and canceled due to lack of capacity. It requires a process management in which the mediator is more involved within the framework of basic principles in order to eliminate all negative factors that would undermine the purpose and effectiveness of mediation. Even if it is deemed possible to cancel the mediation agreement document due to lack of will, in our opinion, it is mandatory for the judicial authorities to keep a distance from these requests, considering the basic principles of the mediation institution. Basic principles such as voluntariness, intentionality confidentiality, impartiality of the mediator control of the process by the parties, equality are valid in the mediation activity, and it is entirely at the discretion of the parties to reach an agreement or not at the end of the process. If an agreement is reached at the end of the mediation activity, it is possible to issue a mediation agreement document between the parties. Although the mediation institution is founded on the principle that the parties resolve the dispute through settlement in line with their free will, the agreement reached at the end of the process is an out-of-court settlement agreement in terms of its legal nature. In this respect, the agreement document is subject to the general validity requirements for contracts. Although an agreement has been reached during the mediation process, it is possible that this document may be rendered null and void (Art. 28/2 of the TCO) within the period stipulated in the Turkish Code of Obligations within the framework of the sanction of voidability (Art. 30-39 of the TCO), especially based on the claim of excessive benefit (Art. 28/1 of the TCO). Again, in the event that the agreement document is signed without the party's or the voluntary representative's capacity to act in the mediation activity, this document may be invalidated and canceled due to incapacity. In order to eliminate all negative factors that may undermine the purpose and effectiveness of mediation, it requires a process management in which the mediator is more involved within the framework of basic principles. Even if it is possible to annul the mediation agreement document due to disorders of will, in our opinion, it is obligatory for the judicial authorities to maintain a cautious approach these requests, considering the basic principles of the mediation institution.
Detaylı Başlık
Arabuluculuk Anlaşma Belgesinin İptali Talebinin Arabuluculuk Sürecinin Temel İlkeleri Çerçevesinde Değerlendirilmesi
