Mandatory Mediation in Turkish Law: A Comprehensive Overview | Lex Lata Consulting and Law Firm

In recent years, Turkey has experienced a significant shift in its legal system, with the introduction of mandatory mediation for both employment and commercial disputes. This article aims to provide a comprehensive overview of the mediation process in Turkey, exploring its application in employment and commercial contexts. We will delve into the key aspects of mandatory mediation, its benefits, and the challenges that still remain. With a focus on the unique features of the Turkish mediation market, we will also discuss the future of mediation in Turkey and its potential as a global player.

Mediation in Employment Disputes

The Introduction of Mandatory Mediation

The concept of mandatory mediation in employment disputes was first introduced in Turkey on January 1, 2018, through the Labour Courts Law. Under this law, it became mandatory for parties to apply for mediation before initiating a lawsuit before the labour courts for the majority of employment disputes. This requirement applies to claims related to compensation and receivables arising from employment relations and re-employment.

The Role of Mediators

Mediators, who are appointed by the mediation bureaus established by the Ministry of Justice, play a crucial role in the mediation process. Upon the application of the filing party, the mediation bureau selects a mediator to facilitate the resolution of the dispute. The mediator's role is to guide the parties towards a mutually agreeable solution.

Suspension of Limitations and Timeframes

One of the significant aspects of mandatory mediation in employment disputes is the suspension of limitations and timeframes. When parties apply for mediation, the statute of limitations or lapse of time is suspended until the mediator's final minutes are prepared. This provides the necessary time for the mediation process to unfold without any time constraints.

Court Consequences for Non-Attendance

If any of the parties fail to attend the mediation process, there are consequences imposed by the court. The party that fails to attend the initial mediation meeting, regardless of the justification for their absence, will be subject to legal expenses. Additionally, the court cannot rule in favor of this party regarding the legal counsel's fee. It is crucial for both parties to attend the mediation meeting, as failure to do so will result in legal expenses being applied according to their own expenses.

Mediation in Commercial Disputes

Expansion of Mandatory Mediation

Building on the success of mandatory mediation in employment disputes, Turkey extended the application of mandatory mediation to all commercial disputes on January 1, 2019. This expansion was introduced through the Law on Starting Legal Proceedings for Monetary Receivables Arising from Subscription Agreements and brought new provisions to the Turkish Commercial Code and the Law on Mediation in Civil Disputes.

Scope of Mandatory Mediation

The scope of mandatory mediation in commercial disputes is broad, encompassing acts and operations deriving from private law. However, matters that can be solely settled by a judge are not subjected to commercial mediation. The mandatory mediation requirement applies to commercial lawsuits regulated under the Turkish Commercial Code and other legislation concerning monetary receivables and compensation claims. It also extends to disputes involving parties that are merchants on both sides and disputes concerning the commercial enterprises of said parties.

Mediation Procedure and Timeline

The mediation procedure in commercial disputes follows a structured timeline. The parties are required to complete a mediation process before filing a lawsuit before the courts. Failure to do so will result in the dismissal of the lawsuit on procedural grounds. The mediation process must be completed within a specified timeframe, which begins from the appointment of the mediator. This timeframe can be extended for a maximum of two weeks if deemed necessary by the mediator.

Mediators' Fees and Settlement Enforcement

The issue of mediators' fees is another significant aspect of mandatory mediation in commercial disputes. The necessary expenses of mediation are typically paid equally by the parties, unless decided otherwise. If the parties fail to settle these expenses, the party against whom the court rules will bear the cost. However, if the parties fail to reach an agreement, the mediator fees for the first two hours will be paid from the budget of the Ministry of Justice.

In the event of a successful mediation, where the parties reach an agreement, the mediation settlement can be enforced like a court decision. This means that the parties may not file a lawsuit on the same subject after reaching a settlement through mediation.

Mediation Developments and Success Rates

Increasing Awareness and Settlement Rates

The Turkish Law on Mediation of 2012 has played a vital role in raising awareness of mediation in Turkey. As a result, the use of mediation has steadily increased in recent years, despite initial resistance from Bar Associations and labour unions. The high settlement rates achieved through mediation demonstrate the public's interest in resolving disputes amicably and economically.

Statistics on Mediation in Turkey

Between January and August 2019, mandatory mediation was initiated in 88,876 commercial disputes, with 37,073 resulting in a settlement. These statistics reflect ongoing mediations, and the success rate of closed mediations stands at an impressive 57 percent. From 2018 to 2019, voluntary mediation applications have also tripled compared to the period of 2013 to 2017. These figures highlight the growing acceptance and effectiveness of mediation as a means of dispute resolution in Turkey.

The Future of Mediation in Turkey

The success of mediation in Turkey has led to the rapid development of the mediation market. Currently, there are 10,287 registered mediators as of August 2019, and approximately 40,000 lawyers have completed mediation training programs. However, in order for Turkey to become a global player in mediation, it is essential to align with international standards, increase the quality of mediators, enhance mediation ethics, and develop cross-border practices.

Conclusion

Mandatory mediation has become an integral part of the Turkish legal system, applied to both employment and commercial disputes. The introduction of mandatory mediation in employment disputes and its subsequent expansion to commercial disputes has significantly impacted the resolution of conflicts in Turkey. The statistics on successful mediations and the growing acceptance of mediation as an alternative form of dispute resolution demonstrate the effectiveness and potential of mediation in the country.

Looking ahead, it is crucial for Turkey to continue developing its mediation model and practice. By adhering to international standards, monitoring and evaluating current mediation practices, and fostering cooperation with international organizations, Turkey can further enhance its mediation system and become a global leader in the field.

At Lex Lata Consulting and Law Firm, we are dedicated to providing comprehensive legal services, including mediation, to our clients. Our team of experienced professionals is committed to assisting you in resolving disputes through mediation, ensuring a fair and efficient process. Contact us today for expert advice and assistance with your legal needs.

Frequently Asked Questions (FAQs)

1. What is mandatory mediation?

Mandatory mediation is a requirement imposed by Turkish law, which mandates parties to engage in a mediation process before initiating a lawsuit in specific types of disputes, such as employment and commercial disputes.

2. What are the benefits of mandatory mediation?

Mandatory mediation offers several benefits, including the opportunity for parties to resolve their disputes amicably, economically, and in a timely manner. It also helps reduce the burden on the court system and promotes the efficient resolution of conflicts.

3. Can parties refuse to participate in mandatory mediation?

Parties are legally obliged to participate in mandatory mediation. Failure to attend the initial mediation meeting without a valid reason may result in legal consequences, including the imposition of legal expenses.

4. How long does the mediation process last?

The duration of the mediation process varies depending on the nature of the dispute and the complexity of the issues involved. However, in both employment and commercial disputes, there are specific timeframes within which the mediation process must be completed.

5. Can the mediation settlement be enforced?

Yes, if the parties reach an agreement through mediation, the settlement can be enforced like a court decision. This means that the parties may not file a lawsuit on the same subject after reaching a settlement through mediation.

6. Is mediation available for cross-border disputes?

While mediation is predominantly focused on domestic disputes in Turkey, efforts are being made to develop cross-border mediation practices and increase cooperation with international organizations. However, at present, cross-border mediation experience is still limited.