Differences and Similarities Between Mediation and Conciliation

Mediation and Reconciliation are often confused with each other. While mediation is applied in civil cases, reconciliation is applied in the criminal justice system.

Even though the process, purpose, cost, and results are different, we have compared both for you. The comparisons are as follows:

• Both are alternative resolution methods and involve the assistance of a neutral and independent third party. This neutral and independent third party is called a MEDIATOR in the mediation process and a CONCILIATOR in the reconciliation process.
• Reconciliation is regulated in Articles 253, 254, and 255 of the Turkish Criminal Procedure Code (CMK). With an amendment made on 24.11.2016, the scope of crimes subject to reconciliation has been expanded. With the same law amendment, the title of Article 253, “settlement,” has been changed to “reconciliation.” According to CMKUY Article 4/k, Reconciliation: refers to the process of resolving a dispute by having the suspect or accused and the victim, the aggrieved party, or their legal representative agree with each other through a conciliator in accordance with the procedures and principles stipulated in this Law and Regulation.
• Mediation, on the other hand, is regulated by the Law on Mediation in Civil Disputes No. 6325. According to the law, Mediation: refers to a dispute resolution method carried out with the participation of a neutral and independent third party, who has received specialized training, to establish a communication process between the parties to bring them together to discuss and negotiate, to understand each other, and thus to enable them to produce their own solutions. (HUAK Article 2)
• Reconciliation negotiations and the reconciliation agreement can be made during both the investigation and prosecution stages if the conditions are met.
• Mediation can be applied both before and after filing a lawsuit.
• At the end of the reconciliation negotiations, a Reconciliation Report is prepared by the conciliator.
• At the end of the mediation process, if the parties agree, a Mediation Agreement Document is prepared.
• In both resolution methods, the parties actively participate in the process and have a say in the process.
• Both serve to establish and maintain social peace within the framework of the principles of restorative justice.
• One of the common purposes of both is to reduce the workload of the judiciary.

Since we share information about mediation on our website, we would like to elaborate a bit more on reconciliation;

Scope of Reconciliation:

• Crimes where the victim is a real person or the aggrieved party is a legal entity under private law are subject to reconciliation. (CMK Article 253/1)
• Crimes subject to complaint investigation and prosecution are subject to reconciliation (CMK Article 253/1-a).
• Crimes requiring imprisonment of up to three years or a judicial fine, where the victim or the aggrieved party is a real person or a legal entity under private law, are also subject to reconciliation for juveniles who are driven to crime. (CMK Article 253/1-c)
• For crimes regulated by other laws, unless otherwise provided, reconciliation cannot be pursued. (CMK Article 253/2)
• Even if the crimes are subject to complaint investigation and prosecution, reconciliation cannot be pursued for crimes against sexual immunity. (CMK Article 253/3)
• If there are multiple perpetrators of the crime, only the person who agrees can benefit from the reconciliation provisions, whether they are in complicity or not.

Crimes Subject to Reconciliation:

• Crimes subject to complaint investigation and prosecution.
• Regardless of whether they are subject to complaint investigation or not, crimes listed in the Turkish Penal Code include:
  • Intentional injury (except for the third paragraph, Article 86; Article 88),
  • Negligent injury (Article 89),
  • Violation of the inviolability of residence (Article 116),
  • Abduction and detention of a child (Article 234),
  • Disclosure of trade secrets, banking secrets, or customer secrets (except for the fourth paragraph, Article 239),
  • Threat (Article 106/1),
  • Theft (Article 141),
  • Fraud (Article 157), etc.

How the Reconciliation Process Works:

During the investigation stage:

The Public Prosecutor, if there is sufficient suspicion that the crime has been committed, must assess whether the crime is subject to reconciliation. If it is determined to be within the scope of reconciliation, the investigation file should be sent to the reconciliation office.

The file sent to the reconciliation office is reviewed by the Public Prosecutor responsible for reconciliation and a conciliator registered in the list is assigned.

During the prosecution stage:

After the public case is filed, the court handling the case, upon determining that the crime is subject to reconciliation, sends the file to the reconciliation office.

The conciliator assigned to the file receives the reconciliation documents and concludes the reconciliation procedures within thirty days. If not concluded within this period, the time may be extended for a maximum of twenty days with the approval of the Public Prosecutor. If reconciliation is achieved, the manner of agreement is explained in detail in the report containing the signatures of the parties.

If the suspect performs the obligation immediately or if reconciliation is reached without any obligation, a decision of non-prosecution is made for the suspect. If reconciliation is achieved during the prosecution stage, the case is dismissed.

If reconciliation is achieved, a compensation claim cannot be filed due to the crime subject to reconciliation. If the suspect does not fulfill the obligation, the reconciliation report or document is considered a written judgment document under Article 38 of the Enforcement and Bankruptcy Law No. 2004.

The decision made as a result of reconciliation does not enter the judicial record.

Subject of Reconciliation Obligation:

The parties may agree on the fulfillment of a specific obligation as a result of reconciliation. These are listed exhaustively in CMKUY. Obligations other than these can also be agreed upon, provided they are not against the law and morality.

• Complete or partial compensation or restoration of material or moral damage caused by the act,
• Complete or partial compensation or restoration of material or moral damages of third parties who are subrogated to the victim or the aggrieved party,
• Making donations to a public institution or a private organization serving the public interest or individuals in need of assistance,
• Performing certain services temporarily for a public institution or a private organization serving the public interest, as shown by the victim or the aggrieved party,
• Participation in a program that will ensure becoming a beneficial individual to society,
• Apologizing to the victim or the aggrieved party.

The parties can also agree on reconciliation without any obligation at the end of the reconciliation process.