Türk Yargı Sisteminde Çok Seçenekli Adliyeler
Özbek, Mustafa Serdar
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The use of alternative dispute resolution in the legal system is not new for lawyers. Many of the ADR methods in current use have existed for hundred years in various legal systems. ADR methods, however, did not become widespread until 1970?s. ADR has spread successfully throughout both the Anglo-Saxon and civil law countries in these years. Civil justice has been in crisis for a long time. Justice is not was not accessible to everyone because of rising costs and overcrowded courts. This judicial congestion led to claims that equal access to justice had been denied. And the use of ADR has developed rapidly in order to relieve court congestion and undue costs and delay, to facilitate access to justice, and to provide more effective dispute resolution. Some countries like the United States and the United Kingdom have been very active in adopting legislative measures on ADR and others have been considering changes in their rules of civil procedure for quite a while. For example, Turkey has enacted legislation to encourage the use of ADR methods. The Code of Civil Procedure of 2011 (CCP) and Draft Code of Mediation in Civil Disputes, designed to increase the use of ADR by civil courts in appropriate cases. All of the ADR methods like negotiation, mediation, arbitration, mini-trial, and moderated settlement conference, are more flexible and more creative than traditional litigation. They may be used either before the trial or during a pending lawsuit. ADR is encouraged both before and during pre-trial conference by the judge within the framework of the Code of Civil Procedure (CCP a. 137, 2). The Code of Civil Procedure obliges parties to consider settlement and mediation. The court is required to consider the appropriateness of settlement in the context of the dispute during the course of the proceedings. The court has to encourage the parties to settlement and asked them to consider negotiation or mediation rather than progressing with the litigation. After determining the main issues of dispute the judge enquires whether the parties would like a reasonable period stay of proceedings to attempt negotiation (CCP a. 140, 2). Settlement agreements that are reached through negotiation or mediation having similar status to court judgments to improve enforcement (CCP a. 315; Code of Enforcement and Bankruptcy a. 38). It is possible to use two methods in conjunction with one another. These are called hybrid processes. Nowadays, most of law schools focus on teaching negotiation and other ADR skills. It is generally accepted that ADR methods must be included in a law school?s professional skills curriculum.