Arabulucunun Özel Hukuktan Doğan Sorumluluğu

Abstract

The purpose of this study is to examine the responsibility of the mediator in terms of the mediation process introduced by the Law No. 6325 on Mediation in Civil Disputes. In order to determine the mediator's liability, the legal relations between the parties are analyzed. In this framework, the mediation agreement, which arises from the law in terms of litigation requirement mediation, and in terms of voluntary mediation, the mediation agreement, which arises as a result of the parties' decision to resolve the dispute between them through mediation, constitutes a type of single partnership. From this point of view, the mediator agreement concluded by the parties for the purpose of authorizing the mediator to plan, conduct and manage the mediation process constitutes a type of power of attorney agreement pursuant to Article 630/1 of the Turkish Code of Obligations. In this study, the mediator's liability arising from the breach or nonperformance of the mediator agreement, as well as the liability arising from unauthorized performance, unjust enrichment and tortious behavior are examined in terms of Turkish law by taking into consideration the Swiss and German doctrine and practice. In addition, the competition of liability claims between the mediator's liability arising from the mediator agreement and other liability cases has been analyzed and the application area of the mediator's liability has been tried to be revealed.