Mandatory Mediation
Mediation is a method that depends on the will of the parties and started to be implemented as of 2013. The aim of mediation, which is one of the alternative dispute resolution methods, is to settle the dispute between the parties in a much shorter time without bringing it to the judiciary.
For these reasons, mandatory mediation practice has started in labor law as of 01.01.2018, and it is regulated as a condition to have a mediation meeting before filing a lawsuit in labor claims and reemployment lawsuits. Subsequently, as of 01.01.2019, mediation in commercial disputes became compulsory.
What is Mandatory Mediation?
Article 5/A of the Turkish Commercial Code No. 6102:
“It is a prerequisite for action to apply to a mediator before filing a lawsuit about claims for receivables and compensation, which is the subject of payment of a certain amount of money, from commercial lawsuits specified in Article 4 of this Law and other laws.” contains the provision.
Accordingly, it has become obligatory to apply for mediation before filing a commercial lawsuit and to consult the disputed issues in mediation negotiations. The fact that the mediation process has not been completed, as it is a litigation condition, necessitates the procedural rejection of the case without going into the merits of the case.
Does It Matter When the Dispute Occurs?
Even if the dispute occurred before 01.01.2019, if the lawsuit is to be settled after this date, the mediation lawsuit condition must be fulfilled. The date of the lawsuit is important, not the date of the dispute.
What is Optional Mediation?
Although compulsory mediation is an alternative solution that must be applied and exhausted for the types of cases in which mediation is determined as a litigation condition, it is also possible to carry out this process voluntarily. Optional mediation is the mediation process that the parties can carry out voluntarily if they agree on who the mediator will be. If the parties have held a mediation meeting voluntarily in order to conclude the process with peace and this meeting has resulted in negative results, a new meeting must be held within the scope of the mandatory mediation application before filing a lawsuit.
How Long Does the Mandatory Mediation Process Take?
The law regulates that compulsory mediation applications for commercial disputes must be concluded within 6 weeks at the latest. Accordingly, the mediation file must be closed within 6 weeks from the date the mediator is assigned. However, in obligatory cases, this period may be extended by the mediator for a maximum of 2 weeks.
How to Apply for Mediation?
Mediation applications can be made from the mediation offices in the courthouses. In addition, it is possible to apply through the Uyap portal with electronic signature or mobile signature. After the application is made, the relevant officer appoints a mediator and the mediator determines a meeting date by meeting with the parties.
Who Pays the Mediation Fee?
In the event that the negotiations within the scope of compulsory mediation end with no agreement, the mediation fee is covered by the Ministry of Justice’s budget. If an agreement is reached as a result of the negotiation, the mediation fee is paid equally by the parties, unless otherwise agreed in accordance with the Second Part of the Mediation Fee Schedule annexed to the Mediation Minimum Fee Schedule. The parties may agree that the payment will be paid by only one of the parties or at different rates.
Negotiation in Mediation
In addition to being an alternative solution, mediation can be beneficial for all parties, considering the long duration of litigation. For this reason, it would be more beneficial to look at the mediation process as a step to be taken to resolve the dispute rather than a condition that must be completed before filing a lawsuit.
We believe that it is the best method to participate in this process, especially with the representation of a lawyer who is experienced in mediation negotiations, who is a judge and has a good knowledge of the procedure. It is important to follow the process with a lawyer, since the issues written in the mediation minutes are the issues that affect the procedure at the litigation stage.