Compulsory Mediation

Mediation is a method that depends on the will of the parties and has been implemented since 2013. The aim of mediation, which is one of the alternative dispute resolution methods, is to resolve the dispute between the parties in a much shorter time with a settlement without taking it to court.

For these reasons, first of all, as of 01.01.2018, compulsory mediation practice has started in labor law, and having a mediation meeting before filing a lawsuit in labor receivables and reinstatement cases has been regulated as a condition for filing a lawsuit. Subsequently, as of 01.01.2019, mediation has been made compulsory in commercial disputes.

What is Compulsory Mediation?

Article 5/A of the Turkish Commercial Code No. 6102:

“In commercial cases specified in Article 4 of this Law and other laws, it is a condition of action to apply to a mediator before filing a lawsuit regarding receivables and compensation claims, the subject of which is the payment of a certain amount of money.”

Accordingly, it has become mandatory to apply for mediation before filing a commercial lawsuit and to consult on the issues in dispute during the mediation meetings. Since it is a condition of action, the failure to complete the mediation process necessitates the rejection of the case on procedural grounds without going into the merits of the case.

Does the Time the Dispute Occurred Matter?

Even if the dispute occurred before 01.01.2019, if the case will be filed after this date, the mediation case condition must be fulfilled. The date on which the case will be filed, not the date the dispute occurred, is important.

What is Optional Mediation?

Although mandatory mediation is an alternative solution that must be applied for and exhausted in terms of the types of cases where mediation is determined as a condition of the case, it is also possible to conduct this process voluntarily. Voluntary mediation is a mediation process that the parties can conduct voluntarily if they agree on who the mediator will be. If the parties have held a voluntary mediation meeting to conclude the process with a settlement and this meeting has a negative result, a new meeting must be held within the scope of the mandatory mediation application before the lawsuit is filed.

How Long Does the Compulsory Mediation Process Last?

The law stipulates that mandatory mediation applications for commercial disputes must be concluded within 6 weeks at the latest. Accordingly, the mediation file must be closed within 6 weeks as of the date the mediator is assigned. However, in cases of necessity, this period can be extended by the mediator for a maximum of 2 more weeks.

How to Apply for Mediation?

Mediation applications can be made from mediation offices in courthouses. In addition, it is possible to apply via the Uyap portal with an electronic signature or mobile signature. After the application is made, the relevant officer appoints the mediator and the mediator meets with the parties and determines a meeting date.

Who Pays the Mediation Fee?

If the meetings held within the scope of mandatory mediation end with a disagreement, the mediation fee is covered by the budget of the Ministry of Justice. If an agreement is reached as a result of the meeting, the mediation fee is covered equally by the parties according to the Second Part of the Mediation Fee Tariff annexed to the Mediation Minimum Fee Tariff, unless otherwise agreed. The parties may agree that the payment will be paid by only one of the parties or at different rates.

Reaching an Agreement in Mediation

In addition to being an alternative solution, mediation can also be beneficial for all parties when the length of the lawsuit period is taken into consideration. For this reason, it would be more beneficial to view 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 the best method for this process is to be represented by a lawyer who is experienced in mediation meetings, who is familiar with the process and who is proficient in the procedure. Since the issues written in the mediation minutes are issues that affect the procedure during the lawsuit phase, it is important to follow the process with a lawyer.