{"id":2010,"date":"2025-04-13T00:59:04","date_gmt":"2025-04-12T21:59:04","guid":{"rendered":"https:\/\/hhhukuk.com\/?p=2010"},"modified":"2025-04-13T00:59:04","modified_gmt":"2025-04-12T21:59:04","slug":"alternatif-uyusmazlik-cozum-yontemleri","status":"publish","type":"post","link":"https:\/\/hhhukuk.com\/en\/alternatif-uyusmazlik-cozum-yontemleri\/","title":{"rendered":"Alternative Dispute Resolution Methods"},"content":{"rendered":"<p><b><span style=\"font-family: Arial;\"><span style=\"font-size: small;\">AS AN ALTERNATIVE DISPUTE RESOLUTION METHOD<\/span><\/span><\/b>\u00a0<span style=\"font-family: Arial;\"><b>FACT FINDING METHOD<\/b><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>INTRODUCTION<\/b><\/span><\/span><\/p>\n<p><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In positive law, which regulates human relations in which the principle of trust should prevail and ensures the progress of such relations in a certain order, it is a well-known fact that, as a rule, everyone is in good faith and the desire for social and legal relations to continue in an order and trust by avoiding the emergence of disputes. However, human beings, as a social being, may engage in attitudes and behaviors that undermine this trust and undermine the presumption of good faith stipulated in the law. These negative attitudes and behaviors naturally lead to various disputes and the order that the law aims to ensure is disrupted. At this point, the task of resolving the disputes that arise necessarily falls on the law. Otherwise, it is clear that the law cannot have the expected effect.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the course of history, it is observed that various methods have been used in the resolution of disputes and that the majority of these methods are state-oriented or used by the state. This is because, in primitive times, people saw the negative aspects of the right of vindication and believed that this authority should be exercised by the state, and in later periods, they produced various theories about it.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">This kind of intellectual development and theoretical infrastructure in the social field and in the world of law has been reflected in the national law of Turkey, which started to apply western law in the full sense with the adoption of the Republican regime. In parallel with the developments in our country and in the world, legal arrangements have been made in relation to the use of the judicial power of the state, as in many other areas, and it has been tried to be brought closer to the ideal by constantly criticizing and commenting on its faulty aspects. In addition, the monopoly right of the state in the resolution of disputes has been emphasized at every opportunity.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As it is known, the judiciary is one of the basic functions of the state, which aims to protect the rights of individuals and ensures the continuation of the legal order. According to Article 36 of the Constitution, everyone has the right to claim and defend as defendant and plaintiff before the state courts. This right guaranteed by the Constitution is a consequence of being a state of law1.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In private law disputes, upon the application of the parties, the state guarantees the settlement of disputes according to predetermined rules of procedure. However, it is clear that expecting the state to resolve every dispute in private law would hinder the performance and diligence expected from the state courts. This situation may cause the courts to be overburdened with excessive workload and the trial may not be completed within a reasonable time. Undoubtedly, the above-mentioned two issues are not the only reasons for resorting to alternative dispute resolution methods other than the state judiciary. There are also reasons such as maintaining humanitarian relations, establishing the continuation of commercial life, resolving disputes amicably and preparing a ground where commercial and humanitarian relations can be re-established between the parties to the dispute.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In this study, I have tried to briefly explain the above-mentioned \"alternative dispute resolution method\", which is one of the alternative dispute resolution methods accepted and applied in many countries of the world \"<b>fact finding (Fact Finding)<\/b>\"\u00a0<b>method<\/b>\u00a0will be emphasized.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In this respect, the study is organized under three headings, firstly, the definition, concept and evaluation of the fact-finding method in general terms will be presented. Subsequently, the differences between the fact-finding method and other alternative dispute resolution methods will be discussed, and then the negative and critical aspects of the fact-finding method will be indicated, followed by the appearance of the method in the United States of America and Poland, and the recent developments in this field in Russia.<\/span><\/span><\/p>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li><span style=\"font-family: Georgia;\"><span style=\"font-size: medium;\"><i>The benefit obtained through compromise is just because it is based on consent<\/i>.<\/span><\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Jefferson<\/span><\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>A. In general<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As with all alternative dispute resolution methods, the fact-finding method essentially aims to resolve the dispute peacefully without bringing the dispute to the state judiciary, to ensure a balance of interests, and to resolve the dispute in a reasonable time and at a lower cost. When we look at the method of fact-finding, we can see that in some cases it is a \"completion method\". This is because, if the method in question does not result in the resolution of the dispute, it is clearly complementary when combined with other alternative dispute resolution methods. However, of course, while the process of determining the facts is in progress, the statements of the parties and the facts in dispute with their favorable and unfavorable aspects, which are determined as a result of very detailed examination and research, are not binding. In other words, if the parties to the dispute have not reached a solution as a result of the fact-finding, the report of the fact-finder will not be a conclusive evidence in another alternative dispute resolution method2.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The case ascertainment method, which is predominantly practiced in the United States, has recently been successfully adopted in European countries as well. The history of alternative dispute resolution in the United States of America dates back to the late 1960s, but the development in these matters took place in the 1980s.3 Although this is the case in general, the practice in the United States, which will be discussed below, reveals that the fact-finding method has a history of one hundred and twenty years and gives some clues about the elements of the fact-finding method. It is a scientific fact that in continental Europe, alternative dispute resolution methods in general, and in this context the fact-finding method in particular, emerged and found application at a later date than in the United States. At this point, it would be appropriate to explain the situation in terms of the practice in Poland, an eastern European country.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As will be seen from the description of the Polish practice, the elements required in the methodology for determining cases are broadly identical to those in the United States.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the doctrine, a third party in a neutral and objective position may bring the parties to a dispute together in order to reach a mutual solution and thus enable them to communicate and find the solution of their problems themselves, or by producing and presenting them with optimal solution proposals that they can agree on in accordance with the conditions and characteristics of the concrete case, The \"fact-finding method\", which is an institution that was born in the common law system and still finds application in the common law system, is an institution that is open to criticism in terms of its negative aspects, but which is open to criticism in terms of the negative aspects that will be mentioned below, which has gained functionality in parallel with the definition made in the definition as \"a set of dispute resolution methods that envisages support in the context of the settlement of the dispute and that operates as an optional way compared to the trial in state courts and is based entirely on the principle of voluntariness \"4 .<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>B. Definition<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the doctrine, it is observed that the definitions of this method are generally similar to each other. In fact, as mentioned above, I am of the opinion that the definitions made by combining the elements of the definition of alternative dispute resolution methods with the elements that overlap with the elements that should be included in the fact-finding method are in the nature of \"the net is the whole world \"6 . Therefore, at this point, it will be sufficient to touch upon a few definitions made in the doctrine regarding the fact-finding method, which is the subject of the examination.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>Identification of cases<\/b>is a form of dispute resolution conducted by an appointed, impartial third party or board, which, like all alternative dispute resolution methods, is non-binding unless the parties agree to it, and involves some form of investigation that identifies and clarifies the dispute7.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>Identification of cases<\/b>is an alternative dispute resolution method that aims to define and concretize the dispute, and in particular to clarify the material facts that constitute the basis of the dispute through a neutral, independent, experienced and often expert third party agreed upon by the parties8.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>Identification of cases<\/b>is an alternative dispute resolution method that aims to resolve the dispute or to guide the parties with detailed determination by applying to an impartial, independent, experienced and necessarily expert third party or committee determined by the consensus of the parties to the extent required by the nature of the subject matter, with the aim of determining the facts subject to the dispute in a sufficient and qualified manner to convince the parties and to ensure the peace of interest between the parties, instead of the state judiciary in the settlement of disputes9.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As can be seen, there is a fundamental similarity in the definition of the case identification method, and detailed studies and legal arrangements to be made on the method in question will contribute to filling the content of the elements mentioned in the definitions.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Although the case determination method, which we have defined above, is not one of the most effective and widespread forms of alternative dispute resolution, it is seen that it is a preferred way of resolving disputes in continental Europe, especially in the United States of America, both directly and indirectly due to its complementary nature as a result of its combination with other forms of alternative dispute resolution.<\/span><\/span><\/p>\n<p><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>C. Concept and Evaluation<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As it is known, each branch of science gains existence and qualifications with the concepts it produces and makes sense of within itself. The meaning attributed to a concept that has been used in the public or used in one branch of science and its determined scope may not be accepted in the field of another branch of science, and it may be given a meaning and content completely or partially contrary to what is known. This is the inevitable result of the principles accepted by the relevant discipline, the ultimate goal it wants to achieve, and the necessity of transforming itself into a meaningful and systematic structure at some point.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">When this point is examined with this in mind, it can be concluded that it is natural that the concepts used in alternative dispute resolution methods differ from the concepts used in the civil judiciary in terms of their purpose, characteristics, structure and the task they undertake. In this context, although the judgment in the civil judiciary is also a solution, the judicial activity in the courts is only one of the methods that resolve the dispute and constitutes an example used in the measurement of alternatives that resolve legal disputes. For this reason, the concepts used in alternative dispute resolution are more general, while the concepts used in civil jurisdiction are specific to the dispute resolution methods. In this regard, it is necessary to distinguish some concepts specific to alternative dispute resolution from some concepts specific to civil jurisdiction. Namely, while the civil judiciary refers to the trial, alternative dispute resolution refers to alternative dispute resolution methods, while the civil judiciary refers to the judgment, alternative dispute resolution refers to the solution, and while the civil judiciary refers to the judge, alternative dispute resolution refers to an impartial third party10.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the light of the above explanations, I believe that it is imperative to elaborate on the concepts used in the method of case identification and to explain the subject through these concepts in order to ensure a better understanding of the subject and to ensure a systematic examination.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The following concepts are involved in the case detection methodology;<\/span><\/span><\/p>\n<ol>\n<li><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Fact finder,<\/span><\/span><\/li>\n<li><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Case Detection Report<\/span><\/span><\/li>\n<\/ol>\n<p><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b><i>a)<\/i><\/b><i>Case Identification Report with Recommendations<\/i><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b><i>b)<\/i><\/b><i>Case Detection Report without Recommendation<\/i><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>C.1.<\/b>\u00a0<b>Fact Finder<\/b>\u00a0(<b>fact finder<\/b>)<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">An impartial and independent third party who has not directly undertaken the responsibility of finding a solution to the dispute and who must have the capacity to inspire respect, demonstrate credibility and maintain a sensitive objectivity11 . We see that the emphasis in this definition is mainly on the qualities that an impartial and independent third party should possess. These are, of course, the main characteristics of a fact-finder. In addition, the fact finder should know how to eliminate trivial and irrelevant cases. The fact-finder should sometimes be an expert in the dispute12. For example, in Poland, when defining the method of fact-finding, it is clearly seen that in technical and complex cases, the expert identity of the fact-finder is emphasized13. However, of course, the parties have the freedom and discretion in this regard.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The fact-finder listens to the arguments of both parties on the facts that need to be clarified, accesses all information, conducts separate interviews with the parties and witnesses, if necessary, conducts in-depth research and investigations, and prepares a report with or without recommendations, which we will examine below, and submits it to the relevant parties14.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Ideally, the parties should make an assessment among themselves to identify and appoint the right caseworker. When making such an assessment among the persons they have identified, their experience can be investigated, and it may be appropriate to meet with some of the parties named in the case summaries provided to find out what they think about the case finder. It is also in the interests of the parties to interview the names on the list of case identifiers thus created. There may be various questions that can be asked. For example, if qualifications and attributes such as expertise or impartiality are important, the prospective case finder should convince the party that he or she is an expert in the disputes to be examined and determined, or that he or she has no direct or indirect financial or other relationship of any kind with the other party.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The interview will also reveal whether the candidate is experienced in the disputes to be brought, whether he or she is prejudiced, whether he or she has a respectful nature. The interview will also be a test of character as to whether he or she is the right person to establish good relations with people and bring about a satisfactory result15.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">An unfavorable situation arising in the United States of America in the application of the fact-finding procedure; if the case finder convinces the parties that he\/she has the expertise and experience required to identify and resolve the cases in dispute, the parties often neglect to put the case finder candidate through the character test described above, i.e. whether he\/she has a prejudiced nature, whether he\/she has a structure that inspires respect and trust, whether he\/she has the ability to establish good relations with people, etc., in cases where the dispute does not involve very high sums of money. However, in order to overcome these and similar problems, training and promotional activities continue to increase.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>C.2.<\/b>\u00a0<b>Fact Finding Report<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The fact-finder, whose qualifications and duties have been explained above, prepares and submits a fact-finding report, with or without recommendations, according to the requests of the parties, after conducting detailed examinations on the facts in dispute that need to be clarified, such as hearing the parties and discovery of documents, by penetrating all necessary information and documents16.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Before proceeding to the explanation of the fact-finding report with and without recommendations, I think it would be useful to touch upon the methodology that the fact-finder should follow in the in-depth examination and research of the cases in dispute at the stage leading up to the issuance of the aforementioned reports. In this context, when we look at the information to be explained below, we can see that the parties are essentially dominant in the functioning of the process. Anyway, this is what is in accordance with the nature of things. Because, we know that voluntariness and sovereignty of the parties are essential in alternative dispute resolution methods.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The parties may have agreed to determine the flow and structure of the procedure to which they and the fact-finder will be subject. With both parties present, the parties will put forward their arguments and have the right of reply, subject to the fact-finder. If witnesses are present, both parties have the right to ask questions of the witnesses, and the parties may have counsel present. If the parties have not determined the method of fact-finding, the fact-finder shall determine the method. Once the fact-finder has all the information, he or she may interview the parties and witnesses separately. Such a structure may be more useful than other methods for sensitive issues where the parties are formal and unwilling to provide information.17<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The fact-finder is usually engaged when the parties are in an irreconcilable position and, as a result of the in-depth research and investigation described above, prepares a report that helps them understand what risks they face. By resorting to this method, the parties often seek an impartial assessment of their situation and, in particular, they prefer to use it in order to have an idea of what their chances of winning the case would be if they resorted to State jurisdiction18.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>C.2.a. Fact Finding Report with Recommendations<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The fact-finder may indicate in his\/her report a completely new solution that he\/she has developed himself\/herself by adopting or being inspired by the proposal of one of the parties to the dispute19. If the fact-finder is an expert who has gone through a similar dispute experience, he\/she may know a way to resolve the dispute that the parties have not thought of. The fact that the report contains a recommendation does not mean that it has to be accepted by the parties20. The parties determine whether the recommendation is accepted or not, in other words, it is not binding. As a consequence of the parties having complete freedom to accept or not to accept the recommendation, they may partially accept the recommendation if they so wish. Acceptance by the parties of the proposed solution set out in the report is often conditional on it being an optimal solution that aims to satisfy the interests of both parties. If it is accepted that the proposed solution indicated in the fact-finder's report will be binding and the proposed solution is related to a material fact, it would be more appropriate to speak of an arbitrator-expert contract, which is an exclusive type of evidential contract, rather than fact-finding, which is an alternative dispute resolution method21. Therefore, if the parties have resorted to fact-finding as an alternative dispute resolution method and have agreed that their proposed solutions on the merits will bind them conclusively, it is a matter of dispute whether the application in question is technically a fact-finding method. However, there is no obstacle to the parties agreeing on the binding nature of the proposal when resorting to this method.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>C.2.b. Fact Finding Report with No Recommendation<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As mentioned above, the fact-finder reviews the information and documents relevant to the dispute before the start of the negotiations. Thus, instead of preparing a report full of recommendations, the fact-finder can prepare a report for each party individually, assessing the strengths and weaknesses of their positions. In parallel, he or she presents his or her opinion on the facts and statistical realities of the dispute. The parties then discuss and attempt to resolve the dispute on the common ground established by the fact-finder's findings, through mutual exchange of views and negotiations. In order for this method to have the positive effect expected of it, it is of course imperative that the confidentiality of the report in question is maintained. This confidentiality allows the parties to openly discuss the matter with the fact-finder without jeopardizing their status and position in the case, even if they file a lawsuit in the future22.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In this method, the parties may naturally learn about the weaknesses of the other party in disputes brought before the fact-finder. This raises the question as to whether the party who learns of the other party's weaknesses can use this information to force a solution more favorable to its own interests.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In order for this method to have the positive effect expected from it, it prohibits this negative situation, which we can call interest opportunism. This form of the fact-finding method is also referred to as \"fact-based mediation\" in the doctrine23.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>D<\/b>.\u00a0<b>Differences between the Case Identification Method and Other Alternative Dispute Resolution Methods<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">As an extension of the intellectual and sociological infrastructure of alternative dispute resolution methods, which have been accepted and applied in many countries of the world, although there is a similarity in the elements and conditions, there may be slight differences in the functioning process of each method compared to the others. I believe that identifying these will help to better understand the subject.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">The methods to be compared here are known and practiced in many countries. Alternative dispute resolution methods are not limited to those listed and it is possible to develop different methods. In other words, the enumeration is not exhaustive.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>a) Differences between the negotiation method and the fact-finding method<\/b>.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the negotiation method, the parties do not need any assistance or support from a third party, whereas in the fact-finding method, a neutral, independent, experienced and, if the nature of the dispute so requires, expert third party is needed.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While the negotiation method aims to resolve the dispute by bringing the parties together to exchange ideas and weigh each other, the fact-finding method aims to resolve the dispute, but it may be sufficient to determine the facts in dispute.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While the negotiation method is the most classical alternative dispute resolution method24 , the fact-finding method is a method that has found application in later periods25 .<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While the negotiation method is a method that is frequently used in the diplomatic settlement of disputes, especially between states26 , the fact-finding method is a method that finds application especially in commercial disputes27 .<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>b) Differences between an Impartial Preliminary Assessment and the fact-finding method<\/b>.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While the non-party pre-assessment method is a method that becomes operational at the very beginning of the dispute in order to decide on how to proceed in order to resolve the dispute, the fact-finding method is a method that becomes operational at a later stage, not at the beginning of the dispute28.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While the neutral preliminary assessment method requires a more narrow and superficial investigation, the case identification method requires a more comprehensive and in-depth investigation and research29.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the impartial pre-assessment the neutral and independent third party does not have a specific name, whereas in the case identification method the neutral and independent third party has a specific name (case identifier).<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>c) Differences between the Short Hearing Method and the fact-finding method.<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While in the short hearing method, in addition to the neutral third party, both, one or more managers (representatives) of the parties to the dispute participate in the settlement of the dispute30 , in the fact-finding method, as a rule, the representatives of the parties do not participate in the settlement of the dispute.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">-Whereas in the short hearing method, there is a panel of neutral and independent third parties and party managers (representatives) who resolve the dispute or propose a solution, in the fact-finding method, as a rule, there is no such panel.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">While in the short hearing method, the parties may, by agreement, authorize a neutral third party to make a binding final decision, in the fact-finding method, the parties may not authorize the fact-finder, who is a neutral and independent third party, to make such a decision. However, even if it is considered that the parties may authorize the fact-finder to make binding recommendations on the material facts in his\/her report, it will no longer be necessary to speak of the fact-finding method, but of the arbitrator-expert contract, which is an exclusive type of evidential contract31.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">-Whereas in the short hearing method, there is a \"short hearing agreement\" that includes the day, time and place of the hearings, the time period during which the parties can put forward their claims, how the hearings will take place and what their evidence consists of32 , there is no such agreement in the fact-finding method.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">- In the short hearing method, the neutral and independent third party does not have a specific name, whereas in the fact-finding method, the neutral and independent third party has a specific name (fact-finder).<\/span><\/span><br \/>\n<span style=\"font-family: Calibri;\"><span style=\"font-size: medium;\"><b>d<\/b><\/span><\/span><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>) Differences between the mediation method and the fact-finding method.<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the mediation method, the mediator does not provide the parties with solutions that they can discuss and examine33 , whereas in the fact-finding method, the fact-finder provides the parties with solutions that they can discuss and examine.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Whereas the mediation method involves a dynamic process aimed at eliminating the differences between the parties through the skills and psychological tactics of an impartial and independent third party34 , the fact-finding method is essentially a method that enables the dispute to be defined, concretized, identified, clarified and, at the request of the parties, a solution is proposed and does not require the psychological tactics of an independent third party.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">- In the mediation method, the neutral and independent third party is called the \"mediator\", while in the fact-finding method, the neutral and independent third party is called the \"fact-finder\".<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>f) Differences between the method of conciliation and the method of fact-finding.<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">-Whereas in the conciliation method, the primary function of the conciliator is to produce and present a catalogue of solutions aiming at the protection and realization of the mutual interests of the parties35 , in the case determination method, the primary function of the case determiner is to identify, concretize and clarify the disputes brought before him\/her, unless the parties request a separate solution proposal.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">-In the conciliation method, the neutral and independent third party is called a \"conciliator\", while in the case determination method, the neutral and independent third party is called a \"case determiner\".<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>E. Negative Aspects of the Case Identification Method<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Since the positive aspects of the fact-finding method overlap with the positive aspects of alternative dispute resolution methods, I believe that there is no need to repeat them. Therefore, this section will focus on the negative or critical aspects of the method in question.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">We have already mentioned above that the fact-finder, in his report without recommendations, sets out the positions of each party to the dispute separately and points out the strengths and weaknesses of their positions36. In order to prevent this from negatively affecting the willingness of the weaker party to resort to this remedy, a rule has been established that the confidentiality of such reports will be maintained and that the party in a stronger position who learns about the weaknesses of the other party cannot use this situation to reach a solution that aims to protect its own interests more, In societies such as ours, where there is a communication blockage or disconnection and the culture of reconciliation is not sufficiently formed or developed37 and alternative solutions are approached with prejudice and concern, the possibility and concern that the weaknesses identified may be used by the other party against itself constitutes the weak and open to criticism part of the method in question.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the fact-finding method, which is particularly effective in technical disputes and therefore in disputes requiring expertise, as we have mentioned above, the parties can determine the method to be followed by the fact-finder while performing his\/her function. Particularly in disputes that require expertise to be determined and clarified, the method to be followed in the concretization and clarification of this dispute should be determined by the fact-finder, who is also experienced and expert in his field, while granting the parties the right to determine this method will weaken the efficiency and success expected from the fact-finder.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>F. The Appearance of the Fact Finding Method in the United States of America and Poland and the Fact Finding Method as an Alternative Dispute Resolution Method in Russia<\/b><\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">It is known that in the United States of America, the country of origin of alternative dispute resolution methods, various alternative dispute resolution methods are applied in the resolution of many disputes that arise. One of the methods that has found application in this country is the method of case determination.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the United States, in the highway construction industry, a technical and commercial dispute arising out of a highway project was resolved using this method. In the resolution of this dispute, an expert and experienced person who has been working in the field of highways for a long time was appointed as a case-finder. With his educative and persuasive findings on the cases in dispute, he was able to resolve the dispute by causing the parties to agree on a common ground of interest38.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Case ascertainment has been an accepted practice in the United States since 1880. State intervention in alternative dispute resolution was an exception. As such, until the First World War, the so-called \"voluntary remedies\" with a focus on labor law, and in this context, the method of case determination, were developed39. This development (i.e. promotion and awareness raising) continued after the First World War and significant progress was made especially in the 1960s and 1980s40.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the United States of America, the view of the fact-finding method, which is an alternative dispute resolution method whose historical development has been briefly mentioned, in terms of the elements that it should have, is essentially, as mentioned above, that a neutral and independent third party, usually an expert, guides the parties and prepares a suitable ground for their agreement by identifying, concretizing and clarifying the facts subject to the dispute as a result of detailed investigation and examination, especially in commercial disputes.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In Poland, an Eastern European country, the method of case ascertainment, which originated in the United States of America and found application in various countries around the world, was initially applied in the same way as described above. There is no obvious difference. However, when we look at the developments in practice, it is seen that they attach great importance to the selection of an expert as a fact-finder. In addition, it is stated that the fact-finding method will only be applied in technical and complex disputes.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Such developments in practice have led to a number of changes in the definition of fact-finding, emphasizing the application of the method in technical and complex disputes and the need for the fact-finder to be an expert41.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">Initially, Russia's inactive attitude towards alternative dispute resolution methods has disappeared in the light of developments in the world, and various symposiums and conferences have been held on these issues recently, and a number of western scientists known for their work in this field have been invited to Russia and their knowledge and experience have started to be utilized. For example, in April 2006, a conference on \"alternative dispute resolution methods\" was organized in Saint Petersburg42 . During this conference, the method of case determination as an alternative dispute resolution method was mentioned and it was emphasized that its active application, especially in disputes arising between states in oil projects, would not only save time for the country, but also its interests could be better measured and achieved with an effective solution. In addition, the book \"Alternative dispute resolution methods\" (672 pages) published by Nasirova E.I. (\u041d\u043e\u0441\u044b\u0440\u0435\u0432\u0430 \u0415. \u0418.) in 2005 shows the extent of interest in alternative dispute resolution methods in Russia43. In the book, the above-mentioned alternative dispute resolution methods, which are generally applied in various countries of the world, are discussed in detail and in this parallel, the method of case determination is evaluated and the problems of its application in Russia are clarified.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the article \"Settlement of disputes arising in international commercial relations outside state jurisdiction\" published in Russia in 2007, it is stated that \"when concluding a contract, the parties should include in its normative provisions such alternative dispute resolution methods that are not only accepted by the parties, but are also reasonable for disputes arising in that field in general. In commercial disputes, this is often the fact-finding method \"44.<\/span><\/span><br \/>\n<span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">There are rules on alternative dispute resolution methods adopted by the Russian International Chamber of Commerce. Alternative dispute resolution methods such as negotiation, mediation, short hearing, examination, independent assessment of questions of rights or facts (=independent preliminary assessment), pleasant service and fact-finding methods should be used in the resolution of disputes arising during the use of documents determined to be highly circulable by international law in international commercial relations45. As can be seen, it is stated that in international commercial disputes, the fact-finding method should be applied in addition to the other methods listed.<\/span><\/span><\/p>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li>\n<ul>\n<li><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\"><b>CONCLUSION<\/b><\/span><\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p><span style=\"font-family: Arial;\"><span style=\"font-size: medium;\">In the field of civil jurisdiction, the excessive workload of the state judiciary causes the trial process to exceed the reasonable time limit. This situation causes people to seek non-legal alternatives other than the judicial authorities and, as a result, to lose confidence in the judiciary and, consequently, in the rule of law.46 In the rule of law, which can be summarized as \"what remains after the law passes through the sieve of justice and the state passes through the sieve of law, that is the rule of law\", the main objective should be to prevent the loss of confidence in the judiciary and the rule of law. Therefore, as a requirement of being a state of law, the state is obliged to create alternative legal remedies for those who attempt to seek alternative solutions outside the judicial authorities. One of these ways is the method of identifying cases. By resolving the negative aspects of the above-mentioned method, its effective and efficient use, especially in complex and specialized disputes, may lead to a balance of interests and a quick and cost-effective resolution of disputes.<\/span><\/span><\/p>","protected":false},"excerpt":{"rendered":"<p>ALTERNAT\u0130F UYU\u015eMAZLIK \u00c7\u00d6Z\u00dcM Y\u00d6NTEM\u0130 OLARAK\u00a0VAKALARIN SAPTANMASI (FACT FINDING)Y\u00d6NTEM\u0130 G\u0130R\u0130\u015e G\u00fcven esas\u0131n\u0131n egemen olmas\u0131 gerekti\u011fi be\u015feri ili\u015fkileri d\u00fczenleyen ve s\u00f6z konusu ili\u015fkinin belirli bir nizam i\u00e7erisinde ilerlemesini sa\u011flayan pozitif hukuk\u2019ta, kural olarak herkesin iyi niyetli oldu\u011fu ve uyu\u015fmazl\u0131\u011f\u0131n ortaya \u00e7\u0131kmayarak sosyal ve hukuki ili\u015fkilerin bir d\u00fczen ve g\u00fcven i\u00e7erisinde devam etmesi arzusu bilinen bir husustur. Ancak, [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[24],"tags":[],"class_list":["post-2010","post","type-post","status-publish","format-standard","hentry","category-genel"],"acf":[],"_links":{"self":[{"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/posts\/2010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/comments?post=2010"}],"version-history":[{"count":1,"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/posts\/2010\/revisions"}],"predecessor-version":[{"id":2011,"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/posts\/2010\/revisions\/2011"}],"wp:attachment":[{"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/media?parent=2010"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/categories?post=2010"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hhhukuk.com\/en\/wp-json\/wp\/v2\/tags?post=2010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}