Baran Alptürk is a senior consultant at <a href="https://turkishlawblog.com/contributors/detail/herguner-bilgen-ucer-attorney-partnership" target="_blank" style="color: rgb(3, 102, 132);">Hergüner Bilgen Üçer</a>.His main areas of focus are transnational dispute resolution, mergers &amp; acquisitions, and telecommunications law.Mr. Alptürk advises clients in international arbitration proceedings and transnational litigation, with a special focus on disputes arising out of distributorship agreements. Mr. Alptürk also contributes to our general corporate practice with respect to all manners of transactional works.

Since 1989, Hergüner has been recrafting the
Turkish law firm model along modern corporate standards, while maintaining the
personal attention that its clients have come to expect. Its size and expertise
make it one of the few truly full-service independent Turkish law firms with a
global reach, equally at home in the role of primary counsel in multinational
transactions and local counsel to foreign and domestic clients. The firm’s
expertise and institutional knowledge enable it to go beyond simple lawyering
and develop creative business-oriented solutions to client needs. It
accomplishes this by putting clients first and becoming intimately acquainted
with all aspects of their business and legal needs. The firm’s reputation for
innovation goes back almost three decades, having drafted many
first-of-their-kind agreements in cross-border transactions that continue to be
used as model agreements in the market today. Hergüner not only provides expert
legal counsel to its clients but also serves as a trusted advisor for them and
provides premium legal advice within a commercial context.The Hergüner team is currently comprised of
approximately 90 attorneys, most of whom have completed their education abroad,
and approximately 40 support staff, making it one of the largest law firms in
Turkey. The firm’s key practice areas include M&amp;A, Corporate Support,
Banking and Finance, Infrastructure &amp; Project Finance, Competition, Real
Estate, IP, Dispute Resolution, Data Protection, Employment &amp; Labor, and
Energy &amp; National Resources.

Hergüner Bilgen Üçer Attorney Partnership

Senior Consultant

At the founding of the Republic, the Turkish legal system was primarily based             on the legal system of Continental Europe. Over time, it developed into a unique             system using the written multi-layered legislative framework of the Turkish Constitution,             statutory codes, and secondary legislation as the primary sources of law. The interpretation             of these primary sources of law by the courts depends heavily on both expert academic             interpretation in theory and court precedents in practice as persuasive authorities.             Certain controlling high court decisions also carry the force of law.

Transnational Litigation: A Practitioner’s Guide - Volume 1

&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">In many countries, Turkey included, the overburdened
justice system has become a chronic problem. The negative effect of a
gridlocked system on litigants seeking to right a wrong can be all too real.
After all, justice delayed really is justice denied.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">This brings to mind two obvious questions: First, why
might this be happening? Perhaps Turks are culturally more litigious than other
peoples, or perhaps it’s some inefficiency in the Turkish justice system. The correct
answer is probably a combination of these, and many other factors as well. Second,
what can we do about it? To an economist the answer might be simple: where the
supply is limited and the demand is too high, then the price should rise.
However, in this context that solution runs into the fundamental principle of
access to justice; a well-developed legal system cannot conceivably consider
pricing some litigants out of the system.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Faced with this conundrum, what Turkey has done in
recent years is that it started using ADR as a gatekeeping device. Now, before plaintiffs
can file certain kinds of suits in Turkey, they first have to sit down with the
defendant in front of a mediator, and try to come up with a mutually agreeable settlement.
If they can come up with a solution, they can pay a relatively modest
mediators’ fee and sign an agreement that can be enforced as though it were a finalized
court order. While plaintiffs are coaxed to a seat at the table with the threat
of being shut out of the courthouse altogether, defendants are encouraged to
participate in the process with the rule that any party that willfully eschews mediation
must bear the entire costs of adjudication, regardless of whether they
eventually prevail on the merits in the lawsuit to follow (which could
conceivably also apply to plaintiffs).&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">What the mediation process accomplishes is that it
effectively culls the demand for court-dealt justice, such that its supply can
meet the demand at a socially conscionable price. The culling is done in two ways:
first, mandatory mediation subtly raises the transaction costs of filing suit
by introducing additional hoops to jump through, thereby presumably deterring
some would-be litigants sitting on the margin, but without blatantly offending
fundamental values. Second, and more directly, mediation can sometimes actually
bring the dispute to a resolution: anecdotal evidence suggests that a not
insignificant proportion of disputes are in fact resolved at the mediation
stage. It bears mentioning that statistics gathered on the national scale suggest
that fully more than half of all
disputes brought to mediation are resolved without the matter ever being
brought before a judge. If that really is the case, then perhaps the mystery of
the clogged Turkish legal system is not that complicated after all: it must be
that Turks go to court for even the most trivial of disagreements, including
those which can be resolved with no outside help other than the gentle nudging
of a mediator.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Perhaps encouraged by these promising numbers, Turkey
keeps gradually expanding the scope of the types of actions where litigants
must first go to mediation. The experiment began with certain labor disputes at
the beginning of 2018. In a major advance, at the start of the following year
it expanded into commercial disputes concerning the payment of a sum certain,
and in 2020, consumer disputes were brought into the fold. Most recently, major
classes of real estate-related disputes, including rent challenges, have been
added to the list, effective as of September 2023.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Turkey’s drive towards promoting mediation is not
limited to easing the burden posed by domestic disputes alone. Turkey has also
signed and ratified the Singapore Convention, which is intended to give
immediate enforceable effect to settlement agreements signed through mediation
in international commercial disputes. However, in a move that goes against the
trend of continuously taking mediation-friendly action, the Grand National
Assembly has recently passed a law that says that starting from April 2023,
international settlement agreements will need to go through a limited,
formalistic review by a local court before they are given enforceable effect in
Turkey. What is more, the outcome of this review will be appealable, which in
practice could neutralize the streamlining effect that the Singapore Convention
was intended to have in the first place.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">That Turkey has been pursuing mediation-friendly
policies does not mean that the mediation process runs completely without
issues. First, where parties have already tried to sort out their differences
amicably but found that they have reached an impasse, having to go through
mediation again before litigation can commence is oftentimes a hassle with no
discernible benefit. Second, while the idea of making a last-ditch effort to
bridge the differences may be well-suited for simple claims, multiparty suits with
complex claims now have to clear an added layer of logistical hurdles before
they can get underway, especially where the counterclaims and cross-claims that
are involved are themselves subject to mandatory mediation. Nevertheless, tricky
as they are, issues such as these are perhaps unavoidable when as fundamental a
shift as mandatory mediation is being implemented, and perhaps this amount of
collateral damage is acceptable if the larger project to ease the burden on the
justice system is to succeed in the end.&lt;/span>&lt;/p>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">Turkey’s experiment with mandatory mediation began
more than five years ago. Mediation has by now firmly entrenched itself as a
natural part of the litigation process, at least in practice areas where resorting
to it has been held mandatory. According to some statistics, it has already
kept a significant number of disputes out of the courts. With that said, there
has been no detectable change in the pace at which cases that do get to court proceed
through the system, at least in the commercial courts. Maybe the introduction
of mandatory mediation was necessary just to keep the growing tide of lawsuits
at bay; perhaps it will be necessary to keep expanding the scope of mandatory
mediation just to remain where we are in terms of the glut in our courthouses.
But eventually we will run out of new causes of action to sweep into the mandatory
mediation universe. If Turkey wants to decisively ease the burden on its
courts, then it will have to identify and resolve whatever systemic problems are
causing the congestion in the first place. The experience thus far makes it
seem like mandatory mediation is at best going to be a stopgap measure that
will win us some time until we get there.&lt;/span>&lt;/p>&lt;hr>&lt;p style="text-align: justify;">&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;em>First published by Chambers and Partners, May 2023.&lt;/em>&lt;/span>&lt;/p>&lt;hr>&lt;p>&lt;span style="font-family: Arial, Helvetica, sans-serif; font-size: 14px;">&lt;strong>Tagged with&lt;/strong>:&nbsp;&lt;a href="https://turkishlawblog.com/contributors/detail/herguner-bilgen-ucer-attorney-partnership" target="_blank" style="color: rgb(2, 102, 132);">Hergüner Bilgen Üçer Attorney Partnership&lt;/a>,&nbsp;&lt;span style="font-size: 14px;">&lt;a href="https://turkishlawblog.com/writer/detail/baran-alpturk" target="_blank" style="color: rgb(2, 102, 132);">Baran Alptürk&lt;/a>&lt;/span>&lt;span style="font-size: 14px;">, &lt;/span>&lt;span style="font-size: 14px;">&lt;a href="https://turkishlawblog.com/writer/detail/tolga-danisman" target="_blank" style="color: rgb(2, 102, 132);">Tolga Danışman&lt;/a>&lt;/span>&lt;span style="font-size: 14px;">,&lt;/span>&nbsp;&lt;a href="https://turkishlawblog.com/insights/category/dispute-resolution" target="_blank" style="color: rgb(2, 102, 132);">Dispute Resolution&lt;/a>&lt;/span>&lt;br>&lt;/p>

The overburdened justice system in Turkey has led to delays and challenges for litigants seeking justice. To address this, Turkey has implemented mandatory mediation as a gatekeeping device before certain lawsuits can be filed. Mediation helps reduce the demand for court-dealt justice by raising transaction costs and facilitating dispute resolution. Turkey has gradually expanded the scope of mandatory mediation to include various types of disputes. However, there are challenges, such as repeating mediation attempts and added logistical hurdles for complex claims. While mediation has kept disputes out of courts, systemic problems underlying the congestion need to be addressed for a lasting solution.

Lawyers Baran Alptürk

Baran Alptürk

Transnational Litigation: A Practitioner’s Guide - Volume 1

An Introduction to Dispute Resolution