As it is known, it is a known fact that the outcome of the trial does not satisfy the parties, due to the judicial process over the years and the receivables that could not be collected through enforcement after the trial. Unfortunately, lawyers are also cited as the source of the problems experienced in the judicial system, where the powers of the lawyer are not at the level they deserve, and in the enforcement system, which includes the ability to implement even if the case is won. It is imperative that lawyers, who are rendered dysfunctional in the current judicial system, take part as the main actor in legal dispute resolution in a legal process before the judicial system.
The functional participation of the lawyer in the mediation process should be ensured instead of discussing the mediation method. In this way, with the active role of the lawyer, the problems in the judicial system will not be experienced and the profession of mediation will not cover other professional groups. Otherwise, the client, who is focused on interests and solutions rather than legality, will turn to other alternatives and the profession of lawyer will be left alone with the danger of extinction.
The lawyer will be the decisive actor in the mediation system, as the lawyers create solution proposals before the mediation negotiation, ensure functional participation in the mediation negotiation, and follow the implementation of the mediation report through non-executive means. In that case, mediators will contribute to the lawyers who offer various alternative solutions to their clients who focus on winning a lawsuit, in terms of compliance with the application of these solutions by the parties, within the legal limits, with communication techniques. In addition, impartial mediators will create a balance in order to clarify the conditions of mediation agreements that the lawyers representing their clients do not want to accept and do not have the ability to be enforced. In the event that the attorney’s power of conciliation is used instead of mediation, various disputes may arise due to the lack of impartiality of the lawyers. In case of resorting to mediation without the parties being represented by lawyers, mediation will not be functional with communication techniques, and it will lose its impartiality if it proposes a solution planned by legal regulation. With the end of the mediation process, lawyers will be able to implement the minutes of the mediators whose duties are terminated, with the legal follow-up authority. There will be a legal decision taken in a short time, in which the wishes of the parties are realized; and with the implementation of the decision, satisfaction will be created in the disputed parties.
Due to the aforementioned reasons, it has emerged that lawyers need to embrace the mediation system that is actively practiced in the West with a realistic point of view and to eliminate the problems that may arise in mediation with their professional skills.
It is essential for lawyers to offer solutions, receive training to do risk analysis, work on mandatory mediation with a lawyer before the lawsuit, and create an enforcement alternative with the support of private institutions in order to ensure that the mediation report is implemented through non-executive means.
As a conclusion, lawyers should be integrated into the mediation system with effective and functional powers in order to ensure that the public, who looks at the judiciary negatively, trust the law and lawyers by confronting the fact that the judicial system is dysfunctional and leaves the parties unsatisfied. Otherwise, the mediation system undertaken by legal mediators will be handed over to other professional groups with the method of solution-oriented action, and professions belonging to the branch of law will be buried in history.
Public Law Specialist Betül ASLAN
Hukukihaber.net
