An analysis of the key challenges to the widespread use of mediation in the Turkish construction industry
Purpose – The Turkish Ministry of Justice submitted the Draft Law on mediation in legal disputes, which was predicated on the European Council (EC) Directive on certain aspects of mediation in civil and commercial matters, to the Turkish Parliament in June 2008. Contentious arguments have followed on the provisions of the Draft Law as well as on the overall applicability of mediation in Turkey. The purpose of this paper is to examine the context surrounding the new mediation phenomenon in order to identify the key challenges awaiting its widespread use in the Turkish construction industry.Design/methodology/approach – Two complementary approaches were adopted in this paper. First, an analysis of the most debated papers of the Draft Law is carried out to determine the potential problems associated with the legislation by making comparisons with the EC mediation directive and mediation laws in some of the member states. Second, a series of structured interviews are organized among the Turkish construction i...
Causes of disputes in the Turkish construction industry: Case of public sector projects
Disputes are inevitable in construction projects. They pose serious risks for the project participants and if not managed properly, disputes prevent the completion of construction projects within the desired cost, time and quality. Therefore, it is vital to determine the factors that contribute to construction disputes. The main purpose of this study is to identify the primary causes of disputes in the Turkish construction industry. In this context, the public construction disputes among the parties during the execution of the contract are examined. The findings show that the problem areas giving rise to disputes are mainly related to seven dispute categories as unit prices, delays and extension of time, contractual matters, variations, contract documents, payments, and other disputes. These dispute categories are analyzed comprehensively, and finally, main causes of disputes in each dispute category are identified and discussed in detail.
Enforcing Rights Generated in Court-Connected Mediation - Tension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice
This article advances the thesis that the number of recent cases and the nature of the claims by parties complaining about their experiences in court-connected mediations suggest that it is time to reassess the courts’ role in supervising and regulating the mediation processes that judges have incorporated into the pre-trial process. The dissonance between the mediation community’s aspirational goals for a conciliatory process and the judicial system’s singular focus on settling cases has not assured a fair process. The courts’ reluctance to supervise the mediation process, for fear that it will become less efficient in getting rid of cases, creates a virtually unregulated enclave of adversarial activity within a process loosely defined as conciliatory and facilitative. This dissonance can create, and has created, both confusion and an unfair process. This article covers the following areas: enforcing mediated settlement agreements, judicial approach, legislative response, commentators on flexible contract principles mixed with bright-line rules, imposing rigid bright-line rules to a process premised on self-determination, tension between contract principles and mediation’s goals, and regulation of the process.