Evaluation of the Request for Cancellation of the Mediation Agreement Document within the Framework of the Basic Principles of the Mediation Process

Abstract

Basic principles such as voluntariness, intentionality confidentiality, impartiality of the mediator control of the process by the parties, equality are valid in the mediation activity, and it is entirely at the discretion of the parties to reach an agreement or not at the end of the process. If an agreement is reached at the end of the mediation activity, it is possible to issue a mediation agreement document between the parties. Although the mediation institution is founded on the principle that the parties resolve the dispute through settlement in line with their free will, the agreement reached at the end of the process is an out-of-court settlement agreement in terms of its legal nature. In this respect, the agreement document is subject to the general validity requirements for contracts. Although an agreement has been reached during the mediation process, it is possible that this document may be rendered null and void (Art. 28/2 of the TCO) within the period stipulated in the Turkish Code of Obligations within the framework of the sanction of voidability (Art. 30-39 of the TCO), especially based on the claim of excessive benefit (Art. 28/1 of the TCO). Again, in the event that the agreement document is signed without the party's or the voluntary representative's capacity to act in the mediation activity, this document may be invalidated and cancelled due to incapacity. In order to eliminate all negative factors that may undermine the purpose and effectiveness of mediation, it requires a process management in which the mediator is more involved within the framework of basic principles. Even if it is possible to annul the mediation agreement document due to disorders of will, in our opinion, it is obligatory for the judicial authorities to maintain a cautious approach these requests, considering the basic principles of the mediation institution.