Mediation as a Precondition for Litigation

Mediation; in fact, is not a new dispute resolution method and has been used in many countries such as the Far East, Africa, the United States of America, the United Kingdom, and France for a long time. What is new is the regulation of mediation as a separate profession and procedure. Mediation is defined in Article 2 of the Law on Mediation in Legal Disputes No. 6325 as "a voluntary dispute resolution method carried out by a neutral and independent third party who has received specialized training, bringing the parties together with the aim of conducting discussions and negotiations using systematic techniques, establishing a communication process between them to ensure that they understand each other and produce their own solutions, and who can also propose a solution if the parties are unable to reach a resolution".

Mediation is a process based on the will of the parties and according to Article 3 of Law No. 6325 on Mediation in Civil Disputes, "Parties are free to apply to a mediator, continue the process, conclude it or abandon it." However, the exception to this article is the cases where mediation is regulated as a condition for filing a lawsuit. Although there is no party will regarding the application in cases where mediation is a condition for filing a lawsuit, the decision to continue or not to continue the process and to reach an agreement always belongs to the parties, and therefore, it is not considered to be against the principle of voluntariness.

The condition of mediation is encountered in some countries such as Germany, Japan, and Italy as examples of mandatory mediation, and in some cases, mediation has been made a mandatory condition in our legal system. The first regulation on this matter was made with Article 3 of the Law on Labor Courts numbered 7036. According to this regulation, "In lawsuits filed for individual or collective labor agreements based on worker or employer receivables and compensations, and for reinstatement demands, the application to the mediator is a mandatory condition." (Although compensation claims arising from work accidents or occupational diseases are suitable for mediation, they are not within the scope of mandatory mediation.) The mediator must conclude the application within three weeks from the date of appointment, and in mandatory cases, this period can be extended by a maximum of one week by the mediator. (Law on Labor Courts Art.3/10) The fee to be paid to the mediator has been determined as "the sum of the compensation to be paid to the worker in case he/she is not employed and the amount to be paid for the period he/she is not employed, and other rights if the parties reach an agreement during the negotiations held for reinstatement demand" with Article 3/13. In Article 3/18 of Law No.7036, it is stated that "The parties can participate in mediation meetings either in person, through their legal representatives or lawyers. The employee authorized in writing by the employer can also represent the employer in the negotiations and sign the final report." It is stated in the article that the employee authorized in writing can participate in the negotiations, since it is stated that the authorization document should only be in writing, whereas according to Article 74 of the Code of Civil Procedure, lawyers must have special authority in their power of attorney to participate in mediation meetings. An attorney without special authorization in his/her power of attorney can only participate in negotiations with the consent of the other party as a consultant of the relevant party. In addition, although it is stated in the article that the authorized employee can represent the employer and sign the final report, there is no clarification on whether he/she can sign the agreement document.

An application was made to the Constitutional Court for the annulment of Article 3/1 of Law No. 7036 on Labor Courts, and the application was unanimously rejected by the Constitutional Court. In the decision, it was stated that "it cannot be said that the obligation to apply to the mediator violates the essence of the right to access to justice, unless it creates an ineffective and fruitless process that makes it impossible or excessively difficult for individuals to seek their rights. Although the obligation to apply to mediation arises as a consequence of being a mandatory condition, this obligation is only limited to applying to mediation, and it is clear that the parties have control over the functioning and outcome of the mediation process. The parties have the right to terminate the process whenever they want, and they also have the choice whether to reach an agreement at the end of the process. If an agreement cannot be reached, the parties can proceed to file a lawsuit, and there is no obstacle for them to use their right to access to justice."

The provision requiring mediation as a condition for filing commercial lawsuits was added to the Turkish Commercial Code numbered 6102 with Article 5/A: "For commercial lawsuits specified in Article 4 of this law and in other laws, it is a requirement to apply to a mediator before filing a lawsuit regarding claims for payment of a sum of money and compensation." The mediator must conclude the application within six weeks from the date of appointment, and in exceptional cases, this period can be extended by the mediator for a maximum of two weeks.

The regulation regarding disputes seen in consumer courts was added with Article 73/A to the Law on Consumer Protection numbered 6502. Although this article makes mediation a prerequisite for disputes seen in consumer courts before filing a lawsuit, exceptions are specified in the law. Namely, the provisions regarding mediation do not apply to disputes that fall within the scope of the consumer arbitration board (the limit for applying to the consumer arbitration board has been raised to 30,000TL), objections to consumer arbitration board decisions, cases specified in Articles 73/6 and 74, and disputes arising from immovable property that are of a consumer nature.

The latest regulation regarding mandatory mediation has been published in the Official Gazette on 05/04/2023 and will come into effect on 01/09/2023. With this latest regulation, disputes arising from lease relationships (excluding provisions regarding the eviction of leased immovable properties through non-judicial execution according to Law No. 2004), disputes concerning the division of movable and immovable properties and the elimination of joint ownership, disputes arising from the Condominium Law, and disputes arising from neighbor rights will require prior recourse to mediation before filing a lawsuit. Furthermore, with the latest regulation, it has been clarified that claims and compensation demands related to the payment of a certain amount of money, along with objections to cancellation, negative determination, and restitution lawsuits, are also subject to mandatory mediation, eliminating any doubts in practice. The same doubt also exists regarding lawsuits filed with regards to employee or employer receivables, compensations, and reinstatement demands. It has been clarified that objections to such demands, cancellation, negative determination, and restitution lawsuits are also subject to mandatory mediation. These regulations will also come into effect on 01/09/2023.

Conclusion

Mediation is actually a solution method that has been practiced for many years, but its regulation as a separate profession and procedure is relatively new. Therefore, although different judicial decisions are encountered in practice, an attempt is made to create a jurisprudential unity in the process. While mediation application is generally optional, in some cases specified in the laws, application to mediation is a prerequisite for filing a lawsuit. Since this obligation is only related to the application and it is up to the parties to continue the process or not and to reach an agreement or not, it is not considered contrary to the freedom of access to justice. In our country, the requirement of mediation for filing a lawsuit has been introduced for many areas with the latest regulation, and its scope was expanded further by adding other areas such as rent disputes.

Atty. Mediator Sinem Çiftci

References:

Law on Mediation in Legal Disputes No. 6325

Regulation on Mediation in Legal Disputes

Law on Labor Courts No. 7036

Turkish Commercial Code No. 6102

Law on the Protection of Consumers No. 6502

Code of Civil Procedure No. 6100

Law No. 7445 on the Amendment of the Enforcement and Bankruptcy Law and Some Other Laws.

Mediator Basic Training Book by the Directorate of Mediation

Constitutional Court Decision dated 11.07.2018, No. 2017/178 E., 2018/82 K.