Have you ever heard of restorative justice and wondered about how it applies to mediation? In this article, we introduce Dr. Vahit Biçak, who is a leading promoter of restorative justice and its application in mediation. As both a Turkish legal practitioner and scholar, Dr. Biçak’s insights reveal the power of mediation to transform legal structures to more effectively serve citizens.
As the founder of the Just and Fair Mediation Centre in Turkey, Dr. Biçak has mediated more than 200 disputes in Turkey in the last eight years and is known to be an expert mediator for employment, commercial, consumer, energy and mine, and health disputes. In addition to his extensive experience in mediation, he is a founding partner of the Biçak Law Firm and has been and is currently a law professor at multiple leading Turkish Law Schools, including Bilkent, Hacettepe, Gazi, Atilim, Baskent, and Haci Bayram Universities. His law firm serves a wide variety of clients. A few notable cases his law firm works on include providing legal services for medical corporations that serve Syrian refugees in Turkey and American petroleum companies that are seeking to have a presence in Turkey. Dr. Biçak has written thirteen books and over one hundred academic articles during his time as an academic. Throughout every role that he has held and currently holds, Dr. Biçak intentionally promotes the adoption of and engagement with systems of restorative justice.
Dr. Biçak’s Journey to Becoming a Mediator
Dr. Biçak’s pathway into the mediation field began with a desire to become a lawyer and engage with comparative law. After receiving a law degree in Turkey, he realized that he wanted to continue studying. This desire took him to the United Kingdom, where he completed an LLM and a Ph.D.
While completing his studies, Dr. Biçak discovered an approach to justice called restorative justice. The Centre for Justice and Reconciliation explains that:
“Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders. This can lead to transformation of people, relationships and communities.”
In practice, restorative justice involves the criminal and victim discussing their interests to repair the harm. This process, according to Biçak, “provides more voice to the parties of the disputants or the victims of the crime.” Dr. Biçak further explained that this approach to justice “lets parties have more discretion on their dispute.”
Before crossing paths with the clear explanation of restorative justice, Dr. Biçak had many similar ideas about conflict resolution but lacked the framework to articulate and organize these thoughts. During his studies in the United Kingdom, Dr. Biçak “explored literature from the English-speaking world and came across restorative justice ideas, and it was comfortable with my mind.” Ultimately, before learning about restorative justice, he was “thinking about similar things but could not state them systematically.” He became convinced that restorative justice was the solution to repairing flawed justice systems.
Once he completed his studies, Dr. Biçak was eager to expand his comparative understanding of legal systems. He thus became a professor in the United States. After teaching a few courses at Fordham Law School in New York, he returned to Turkey to pursue a professorship position and establish his law firm.
Dr. Biçak approached these positions as opportunities to be an opinion leader and promote restorative justice. He stated that he “is among the freedom-minded people.” By this, Dr. Biçak means that he has always sought to be in roles where he could introduce students and political leaders to new ideas, one of which being restorative justice. As a prominent thought leader on restorative justice, he faced significant resistance. Many people were and continue to be dismissive of his ideas because, he explained, they “believe that the state should be the only body that settles the dispute.” However, this resistance has not prevented Dr. Biçak from fighting for a society that embraces ideas aligned with the tenets of restorative justice.
Through his studies in the United Kingdom and the United States, Dr. Biçak became intrigued with mediation. According to Dr. Biçak, “mediation is a good step” in creating a legal system that reflects the restorative justice framework. His intensity to promote mediation increased as he became overtly critical of Turkey’s justice system. Observing how a court case could take between seven to ten years to be heard by the Turkish justice system, he knew that mediation could provide relief. With more than 10 million cases waiting to be heard by a judge, there were frankly too many disputes for the justice system to handle. Once again, he found himself being a thought leader.
He has written multiple articles and has become a visible promoter of mediation. His support for mediation eventually led to briefing the president of Turkey about restorative justice. During this briefing, Dr. Biçak explained his vision for “all Turkish judicial mechanisms to be restructured under the restorative justice framework.” This briefing with the Turkish president contributed to the passing of a law reform in 2013, which introduced mediation within Turkey’s legal system. According to Dr. Biçak, mediation helps “move the power away from governments being the sole responders to crime and rather increases the agency of parties in developing a resolution,” a principle of restorative justice. This new legislation gave Turkish citizens a greater stake in their own justice system.
A Brief History of Mediation in Turkey
Since the initial introduction of mediation within the Turkish legal system, the requirements have changed. After passing law reforms in 2013, the general population was not inclined to participate in mediation. This adversarial mindset is widespread worldwide, including in the United States. The continued resistance forced the government to make mediation mandatory for all labor disputes in 2018. That meant that before the court heard a labor dispute, the parties were obligated to participate in mediation. This rule sought to decrease the number of cases heard by the court. Participation in mediation became mandatory for commercial disputes in 2019 and consumer disputes in 2020. Many expect that parties involved in marriage disputes will be required to partake in mediation before being heard by the court.
Mediation has proven to be successful in the majority of cases. Since 2013 there have been approximately one million voluntary mediation cases in Turkey with agreement rates of 98%. For labor disputes, resolution rates have been at 60%. 53% of commercial disputes have been resolved through mediation. Lastly, of the 100,000 consumer disputes that have gone through mediation since 2013, 56% have reached a satisfactory resolution. Dr. Biçak is thrilled with the results of mediation since its introduction in Turkey.
Along with Turkey’s adoption of mediation came strict requirements to gain the title of a mediator. To become a mediator in Turkey, one must be a practicing lawyer for a minimum of five years and be a Turkish citizen. If one meets these requirements, they will participate in trainings and then will have to pass exams to prove that they will be an effective mediator.
Once certified, a mediator in Turkey can mediate at an office that only provides mediation services. This office must have a minimum of 3 rooms, one room for each party and a room for the parties to meet collectively. At the end of every mediation, an agreement must be drafted and signed by each party. Parties are required to abide by the conditions in the resolution. If a party fails to comply, an enforcement officer intervenes.
Surprises as a Mediator
When asked about what revelations he has had about mediation, Dr. Biçak discussed aspects relating to the positioning of parties and his fellow Turkish lawyers. For starters, he has been surprised at how stubborn disputants can be when ordered to attend mediation. When a party or the parties involved in a dispute state that there are “no grounds for settling,” an agreement explaining the impasse is drafted before the mediation concludes.
Secondly, the more time Dr. Biçak spends in the profession, the more he is confronted with lawyers who are resistant to embracing mediation, despite its proven success. He discussed how many lawyers in Turkey are traditionalists and nationalists who are unwilling to explore what is beyond Turkey. Dr. Biçak has observed that many lawyers allow their nationalistic ideas to prevent them from traveling outside Turkey. This lack of exploration has in part perpetuated the resistance to mediation. As someone who has experienced the benefits of travel, he is deeply troubled by this tendency. His experiences outside of Turkey have exposed him to different legal systems and cultures. This exposure has been critical to his efforts to restructure the Turkish justice system. Ultimately, he believes that “lawyers are the leaders and opinion-makers of the society and that they should be open to new ideas and cultures.”
Lessons Learned
Over the years, Dr. Biçak has gained a greater understanding of what is required to facilitate a productive mediation and support a peaceful society. Among these lessons learned, he discussed the importance of all parties being fully present at the mediation. Many disputants have lawyers who represent them. It is common for these lawyers to be present or replace the party during mediation. Dr. Biçak argued that the effectiveness of mediation decreases with the presence of a lawyer. This sentiment adheres to his support of restorative justice which relies on the dialogue between parties with minimal interference from other parties. Increasing agency for the parties is essential to productive mediation.
Dr. Biçak also explained the heavy burden that he carries. He feels as if he has a responsibility to raise awareness about mediation among the general public. The success of this work will be reflected by how many individuals are participating in voluntary mediation. His desire to raise awareness is motivated by factors beyond increasing participation in voluntary mediation. His motive is rooted in the understanding that if more people are aware of mediation and acquire conflict engagement skills, the greater community will become more tolerant. He is confident that people will be able to navigate their conflicts healthily.
To illustrate the need for an increase in tolerance, Dr. Biçak provided the example that he often observes when driving. When one driver frustrates another on the road, it is common in Turkey for both people to stop driving and exit their vehicles to fight. If more people accept and embrace strategies applied in mediation, minor conflicts could be de-escalated if they knew mediation was an option. Conflict resolution strategies used in mediation are essential to creating a peaceful society, according to Dr. Biçak.
Mediation has demonstrated to Dr. Biçak that the process depends on individualism and self-determination. Dr. Biçak remarked that although an essential aspect of democracy is individualism, many people in Turkey deliberately avoid situations that demand individualism due to their history under an authoritarian government. This may also be a result of being socialized in a more collective/high-context cultural normal. He mentioned the example of when people in Turkey go to restaurants. They often defer their meal decision to the chef.
Although a seemingly minor example, Dr. Biçak attributes this lack of confidence in decision-making to some of the obstacles that disputants face during mediation. Mediation relies on parties taking control of the resolution and being willing to collaborate to develop an agreement. Restorative justice and mediation cannot deliver the desired outcomes if the parties are not willing to explain their perspectives or if the relevant institutions do not systemically support mediation’s fundamental principles of self-determination.
Additionally, Dr. Biçak highlighted the struggle to encourage disputants to discuss their interests rather than their rights. In his experience, many parties enter mediation with a desire to argue about rights. To address this issue, Dr. Biçak clearly explains in his opening statement that mediation involves a discussion about the difference between interests and rights. Despite this acknowledgment, parties often continue to struggle with transitioning to an interest-based conversation. This phenomenon is not isolated to Turkey, but can also be observed across the world.
Advice for Current and Future Peacebuilders
Whether you are currently a peacebuilder or are exploring opportunities to promote peace, Dr. Biçak’s advice applies to you. Underlying the desire to be a peacebuilder is the need to “understand the philosophical ideas of mediation.” He suggests that one should begin with reading about restorative justice. Knowing these ideas will allow you to develop strategies to facilitate mediation and facilitate an environment conducive to the development of an agreement.
Knowledge alone is not sufficient, it must be complemented with experience. When coupling these two things, the mediator will become more comfortable with encouraging participation in the mediation. Certain mediation practices are most effectively learned through practice, such as breaking the ice, exploring interests versus positions, and providing a safe environment for negotiation.
Dr. Biçak also recognizes that much of his success evolved from experiencing and comparing legal systems across the globe. Therefore, he encourages individuals to learn about how other nations use a restorative justice framework to navigate conflict. As the world becomes ever more interconnected, it is becoming easier to learn about conflict resolution in different contexts.
Working toward a society that reflects the restorative justice framework requires commitment. If you are interested in embracing some of the suggestions provided by Dr. Biçak, you can learn more about restorative justice and mediation in the context of Turkey and the European Union here. Additionally, the Swiss Federation of Mediation Associations provides a comparative analysis of mediation in the United Kingdom and Italy.
How can you commit to promoting restorative justice?
