The Law on Mediation in Civil Disputes No. 6325 was accepted on 07.06.2012 and was published in the Official Gazette dated 22.06.2012 and numbered 28331. Article 1 of the Law regulating the institution of mediation, which is a first for Turkish Law, states that it will be applied in the resolution of private law disputes arising from business or transactions on which the parties, including those with foreign elements, can freely dispose of. In the justification of the Law, it is stated that with the mediation institution, which is one of the alternative dispute resolution methods, it is aimed to resolve the disputes by agreement without reflecting on the courts and to reach the result in a simpler and easier way.

Again, with the Law No. 7155, which was accepted by the Turkish Grand National Assembly on 06.12.2018 and entered into force as of 01.01.2019, applying to a mediator before filing a lawsuit about an amount of money received and compensation claims in commercial cases has become a mandatory litigation condition with Article 5/a of the TCC.

Mediation is an impartial and expert trained expert who brings the parties together in order to negotiate and negotiate by applying systematic techniques, establishes a communication process between them in order to ensure that they understand each other and thus produce their own solutions, and can offer a solution if the parties fail to produce a solution. It is a voluntary dispute resolution method, which is carried out with the participation of an independent third party, in applying to the process other than mediation, which is regulated as a condition of litigation, and in any case, in the execution and termination of the process.

Likewise, mediation is a dispute resolution method widely used in peaceful dispute resolution methods, which is applied in the resolution of private law disputes, including those with foreign elements, but arising from works or transactions on which the parties can freely dispose.

Mediation serves a variety of purposes, such as providing the parties with the opportunity to identify and clarify issues of dispute, understand different points of view, define their interests, put forward and evaluate possible solutions, and, if desired, reach mutually satisfactory agreements.

What is Mediation?

Mediation; It is a dispute resolution method that the parties to a private law dispute apply before or after the lawsuit is filed, under the arbitration of an impartial and expert third party (mediator) chosen by their free will. Mediation is a procedural law institution that aims to resolve the dispute out of court, quickly and definitively.

Mediation is divided into two as “compulsory mediation” and “voluntary mediation”:

  • Mandatory Mediation: For some disputes, it is obligatory to go to a mediator before filing a lawsuit. Mandatory mediation is a litigation condition for these disputes. In other words, the lawsuit filed without going to the mediator is rejected due to the absence of a lawsuit requirement. Some demands (severance pay, notice indemnity, overtime pay, salaries, etc.) that are the subject of commercial lawsuits and labor lawsuits are included in the scope of compulsory mediation.
  • Optional Mediation: Optional mediation is when the parties do not have to go to a mediator, but prefer to apply to a mediator before filing a lawsuit for the resolution of the dispute. The parties may apply to arbitrary mediation regarding any private law dispute that they can dispose of.

Disputes related to criminal acts, not through mediation; According to the Code of Criminal Procedure, mediation/conciliation provisions are applied and resolved by the mediation offices within each prosecutor’s office.

Compulsory Mediation in Commercial Litigation

Pursuant to Article 5/a of the Turkish Commercial Code No. 6102, it is a prerequisite to apply to a mediator before filing a lawsuit regarding claims for receivables and compensation, the subject of which is the payment of a certain amount of money, from all commercial lawsuits specified in Article 4 of the TCC and commercial lawsuits included in other special laws. In other words, such cases cannot be brought directly to the commercial court of first instance without resorting to a mediator.

The mediator concludes the application within six weeks from the date of assignment. This period may be extended by the mediator for a maximum of two weeks in compulsory cases.

Mandatory Mediation in Labor Law

In labor law, annual leave wage, overtime (overtime) wage, salary, etc. between the employee and the employer. such as labor receivables and notice indemnity, severance pay, etc. Disputes arising from such compensations will be resolved through compulsory mediation as of 01.01.2018 (Law No. 7036 on Labor Courts Art.3).

In order to resolve the legal problem between the worker and the employer, first of all, they are obliged to apply to a mediator. Labor lawsuits filed in the labor court without resorting to a mediator will be rejected procedural due to the “absence of litigation conditions”.

If the worker and the employer agree on a mediator for the resolution of the legal problem related to the labor law, the mediator accepted by both parties tries to resolve the dispute. If the parties cannot reach an agreement on a mediator, the “mediation center” in each courthouse assigns a mediator to resolve the dispute, which it will choose from among the registered mediators.

Basic Principles of Mediation
Voluntary and Equality

The Law on Mediation in Civil Disputes No. 6325 left the parties completely free to resort to mediation, to continue the process, to conclude it or to abandon this process. The parties must first agree to settle the dispute through mediation. The parties may not be forced into this process in any way, and they may also refuse to resolve the dispute through mediation at any stage.

In addition, the parties have equal rights both when applying to the mediator and throughout the process. Neither party can be excluded from the mediation process, nor can the right of speech be restricted compared to the other.

Security

Unless otherwise agreed by the parties, the parties and the mediator are obliged to keep confidential the information and documents and other records submitted to him or otherwise obtained within the framework of the mediation activity. These information and documents cannot be shared with third parties, cannot be used as evidence, and witnesses cannot be made regarding this information and documents.

Mediation is not Arbitration or Arbitration. It is an arbitrary process. Mediators are independent and equidistant from both parties. It is requested that the parties participating in the process act within the framework of the rules of courtesy.

Unavailability of Statements and Documents

The law regulates that a third party, including the parties, the mediator or those participating in the mediation, cannot bring forward certain statements or documents as evidence and testify about them when a civil lawsuit is filed or arbitration is resorted to in relation to the dispute. These statements and documents are:

  • Invitation to mediation by the parties or the request of one party to participate in the mediation activity,
  • Opinions and proposals put forward by the parties for the settlement of the dispute through mediation,
  • During the mediation activity, the propositions put forward by the parties or the acceptance of any fact or claim,
  • Documents prepared only for mediation activity.

The disclosure of these statements and documents cannot be requested by the court, arbitrator or any administrative authority. Even if these statements and documents are presented as evidence, they cannot form the basis of the judgment. However, such information may be disclosed to the extent required by law or necessary for the implementation and enforcement of the agreement reached at the end of the mediation process.