Who can be a mediator?
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Differences and Similarities Between Mediation and Conciliation
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As stated in Article 18 of the Constitution, forced labor is prohibited. In other words, the fee for the work done must be paid. Naturally, lawyers are entitled to a fee for the attorney services they provide during the mediation process. The mediation process is much shorter, less stressful and much less troublesome for lawyers compared to a lawsuit. Therefore, the attorney fee received in mediation is definitely more satisfactory than the fee to be received from a lawsuit; both financially and morally.
In voluntary mediation, reconciliation, conciliation and all other types of settlement agreements within the scope of Article 35/A of the Attorneyship Law, the attorney fee is determined according to the Turkish Bar Association Minimum Fee Tariff for Attorneys (Tariff) unless the parties agree on a higher fee. However, Article 16 of the Tariff has introduced a special regulation regarding the fee to be paid in the works followed through the attorney during the mediation phase if mediation is a lawsuit condition.
The parties may participate in the lawsuit condition mediation process themselves. There is no obligation to be represented by a lawyer in mediation. However, the parties who wish can conduct the process without coming by sending their lawyers only. Of course, it is also possible for the parties to participate in the process with their lawyers.
The lower limit of the fee to be received by the lawyer acting as representative in the mediation process, if there is no other agreement between the client and the client, is determined by the Minimum Fee Tariffs for Attorneys and is published in the Official Gazette every year and enters into force. According to the Minimum Fee Tariff for Attorneys published in the Official Gazette No. 31665 dated 20.11.2021 and entered into force on the same day, the lowest fees to be paid to the lawyer in the mediation process are as follows:
A- If an agreement cannot be reached in mediation, a fixed fee of 1,350.00 TL will be paid to the lawyer. However, the lawyer’s fee cannot exceed the principal receivable in dispute.
This fee paid will be deducted from the fee the party will pay to their lawyer if the mediation activity ends in a dispute and the party goes to court with the same attorney. I believe that this regulation is contrary to the Constitution Article 18 mentioned above and should be abolished. In other words, the lawyer’s fee in mediation should not be deducted from the fee to be paid if the same attorney goes to court.
B- If an agreement is reached in mediation
a- Attorney fees in cases where the subject is money or can be evaluated in money.
It is determined as a certain percentage of the agreed amount according to the third part of the tariff.
This rate is as follows:
- 15 percent for the first 40,000 TL
- 13 percent for the next 50,000 TL
- 9.5 percent for the next 90,000 TL
- 7 percent for the next 250,000 TL
- 5 percent for the next 620,000 TL
- 3.5 percent for the next 775,000 TL
- 1.8 percent for the next 1,275,000 TL
- 1 percent for anything above 3,100,000 TL
Let’s explain this issue with an example:
Creditor A Ltd.Şti. sold goods to debtor B A.Ş. and started enforcement proceedings for 170,000 TL because it could not collect its receivables arising from the invoice. The debtor objected to the debt and the enforcement proceedings were stopped. The creditor must apply to mediation before filing a lawsuit to cancel the objection arising from the commercial sale. The mediation process was conducted with A Ltd.Şti’s lawyer and at the end of the process, the parties agreed on the payment of 170,000 TL. In this case, A Ltd.Şti. will pay its lawyer,
- 15 percent for the first 40,000 TL = 6,000 TL
- 13 percent for the next 50,000 TL = 6,500 TL
- 9.5 percent for the next 80,000 TL = 7,600 TL20,100 TL will be paid.
There is a lower and upper limit for this fee. In mediation activities up to 9,000 TL, the attorney’s fee is 1,350 TL. However, this fee cannot exceed the actual receivable; for example, if the amount of the dispute is 1,000 TL, the attorney’s fee is also 1,000 TL.
b- In works that are not about money or cannot be evaluated with money
If the mediation process results in an agreement, the fixed fee determined in the second section of the second part of the Tariff is as follows:
- 2,175 TL for cases to be heard in the civil courts of peace
- 5,100 TL for cases to be heard in the courts of first instance
- 2,550 TL for cases to be heard in consumer courts
- 7,375 TL for cases to be heard in the intellectual and industrial property rights courts
