Introduction

In which cases is mediation mandatory, and how does the mediation process work? This study presents an analysis of court decisions regarding which cases mediation is mandatory or optional, and how the mediation process operates. The reviewed decisions indicate that mediation has become a prerequisite for litigation in the Turkish legal system, especially in the areas of labor and commercial law, and that the proper conduct of the process is of critical importance.

The study details the scope of mediation, the steps of the process, the obligations of the parties, and the consequences of non-compliance with these obligations, in light of the decisions of the Court of Cassation, Regional Courts of Appeal, and Courts of First Instance.

Mediation Types: Court decisions divide mediation into “mandatory (prerequisite for litigation)” and “optional.” Optional mediation can be resorted to in all private law disputes over which the parties can freely dispose.

Scope of Mandatory Mediation:

Labor Law: Pursuant to Labor Courts Law No. 7036, applying for mediation is a prerequisite for litigation in lawsuits regarding employee/employer receivables based on law or contract, compensation, and re-employment claims. However, compensation lawsuits arising from work accidents or occupational diseases are outside this scope.

Commercial Law: Pursuant to Article 5/A of the Turkish Commercial Code (TCC) No. 6102, mediation is a condition for litigation in commercial lawsuits involving claims for receivables and compensation where the subject is the payment of a sum of money. With Law No. 7445, “actions for annulment of objection, negative declaratory actions, and restitution actions” have also been added to this scope as of 01.09.2023.

Process Flow:

Application Time: Mandatory mediation must be applied for before a lawsuit is filed. It is not possible to fulfill this condition after the lawsuit has been filed.

Final Report: It is mandatory to attach the original or a copy certified by the mediator of the final report indicating that an agreement could not be reached at the end of the mediation activity to the petition.

Consequences of Non-Compliance with Procedure:

If a lawsuit is filed without any application to a mediator, the court will dismiss the case on procedural grounds due to the “absence of a condition for litigation”.

If the final mediation report is not attached to the petition, the court grants the plaintiff a definitive one-week period to remedy the deficiency. If the deficiency is not remedied within this period, the lawsuit will again be dismissed on procedural grounds.

Binding Nature of the Agreement: If an agreement is reached at the end of the mediation activity, no new lawsuit can be filed by the parties regarding the agreed-upon matters. Exceptions to this rule include cases of vitiated consent.

1. Scope of Mediation: Mandatory and Voluntary Cases

Court decisions clearly reveal the fundamental distinction of mediation. As stated in the decisions of the Antalya Regional Court of Justice and the 3rd Civil Chamber of the Supreme Court of Appeals, mediation “mandatory” and “voluntary” is divided into two types. While voluntary mediation is a method that parties can resort to in any private law dispute over which they can freely dispose, mandatory mediation is a condition for filing a lawsuit for disputes specified by law.

a. Mandatory Mediation in Commercial Cases: Mandatory mediation in commercial disputes is the most frequently encountered area of application. Numerous decisions by first instance and regional courts of justice refer to Article 5/A of the Turkish Commercial Code (TTK). This situation was stated as follows in the decision of the 17th Civil Chamber of the Adana Regional Court of Justice: “In lawsuits concerning claims for a certain amount of money, compensation, annulment of objection, negative declaratory action, and recovery, applying to a mediator before filing the lawsuit is a condition for litigation.” This scope is observed to also include compensation claims arising from intellectual property (Istanbul Regional Court of Justice 16th Civil Chamber) and claims arising from cooperative law (Adana Regional Court of Justice 9th Civil Chamber).

b. Mandatory Mediation in Labor Law Cases: Mandatory mediation in labor law, as emphasized in the decisions of the Grand Chamber of Civil Cases of the Court of Cassation and the 9th Civil Chamber of the Court of Cassation, is regulated by Article 3 of the Labor Courts Law no. 7036. The following provision is frequently cited in the decisions: “In lawsuits filed based on an individual or collective labor contract for employee or employer receivables and compensation, and for reinstatement claims, referring to a mediator is a prerequisite for filing a lawsuit.” However, the 10th Civil Chamber of the Court of Cassation states that it exempts “material and moral compensation” cases arising from work accidents or occupational diseases from this mandatory requirement.

c. Exceptions and Special Circumstances: The decisions also set forth certain situations where mandatory mediation will not be applied. The 45th Civil Chamber of the Istanbul Regional Court of Justice has stated that bankruptcy cases are not subject to mediation as a prerequisite for filing a lawsuit. Furthermore, as emphasized in the decision of the Izmir 2nd Commercial Court of First Instance, “in cases where there is an obligation to resort to arbitration or another alternative dispute resolution method in special laws, or where there is an arbitration agreement, the provisions regarding mediation as a prerequisite for filing a lawsuit shall not be applied.” 

2. Functioning of the Mediation Process and Procedural Provisions

The proper conduct of the mediation process is of vital importance for the merits of the case to be examined.

a. Submission of Application and Final Report: The most fundamental rule of the process is that the application must be made before filing a lawsuit. Bakırköy 5th Civil Court of Commerce, “that mediation is not one of the prerequisites for a lawsuit that can be remedied later” ruled in a way that emphasized the strict nature of this rule. The obligation to attach the “failure to agree” final report, prepared at the end of the process, to the petition for a lawsuit is based on Article 18/A of Law No. 6325. In the decision of the 3rd Civil Chamber of the Supreme Court, it was stated that if this report is not attached, the court will give the plaintiff a one-week peremptory period, and if the deficiency is not remedied within this period, the lawsuit will be dismissed on procedural grounds.

b. Conduct of the Process and Confidentiality: Regarding how the process will be conducted, the 17th Civil Chamber of the Adana Regional Court of Justice, quoting Article 15 of Law No. 6325, defines the role of the mediator as follows: “Unless otherwise agreed by the parties, the mediator shall conduct the mediation activity by taking into account the nature of the dispute, the wishes of the parties, and the procedures and principles necessary for the swift resolution of the dispute.” The importance of conducting the process in accordance with procedural rules is evident in the decision of Bakırköy 1st Civil Court of Commerce. In this decision, the lawsuit was dismissed on procedural grounds due to the uncertainty of how the meetings were conducted and the report not being prepared in accordance with procedural rules.

c. Legal Nature and Consequences of the Agreement: When parties reach an agreement during the mediation process, it definitively terminates the dispute. As stated by the 4th Civil Chamber of the Supreme Court of Appeals, in accordance with Article 18/5 of Law No. 6325, “In the event an agreement is reached as a result of mediation activities, no lawsuit may be filed by the parties regarding the matters agreed upon.” However, in its decision dated 10.01.2024, the Constitutional Court stated that an “enforceability annotation” can be obtained from the court for this agreement document, and the document containing this annotation shall be considered to have the nature of a court judgment.

d. Other Matters Related to the Process (Costs and Participation): Mediation costs vary depending on whether the process is mandatory or voluntary. In a decision by the 9th Civil Chamber of the Supreme Court of Appeals, it was stated that mandatory mediation costs would be considered litigation expenses and charged to the parties based on the outcome of the case. However, a significant decision by the Constitutional Court dated 14.03.2024 annulled the rule stipulating that a party who fails to attend the first meeting without a valid excuse shall be held responsible for all litigation costs, even if they win the case, on the grounds that it disproportionately restricts the right of access to court.

Conclusion

When the examined court decisions are evaluated in their entirety, it is concluded that the institution of mediation in the Turkish legal system, established with the aim of reducing the workload of courts and resolving disputes peacefully, is a prerequisite for litigation, whose procedural rules are strictly applied. Especially in commercial and labor disputes, it is an absolute necessity for a party planning to file a lawsuit to first apply for mediation and complete this process in accordance with proper procedure. Failure to apply for mediation or incorrect conduct of the process leads to a severe consequence such as the procedural dismissal of the case without delving into its merits. A mediation process that concludes with an agreement is binding for the parties and, as a rule, constitutes a final solution that closes the path to litigation. Judicial bodies meticulously apply the mediation requirement to fulfill this objective of the legislator. A writing suggestion.

Why is Expert Lawyer Support Necessary? (Istanbul – Tuzla – Pendik – Kartal – Maltepe – Kadıköy – Ataşehir – Ümraniye – Gebze)

The mediation process, especially because it constitutes a prerequisite for litigation in labor and commercial cases under mandatory mediation, leads to the case being dismissed on procedural grounds, not on its merits, even with the smallest procedural error, causing loss of rights. Court decisions clearly show that most of the errors related to the mediation process originate from technical details such as incorrect application, incomplete final record, incorrect dispute type selection, improperly conducted meetings, and incorrect drafting of the record.

Therefore, it is critically important that the mediation process in regions with heavy business and trade traffic, especially in Istanbul, including Tuzla, Pendik, Kartal, Maltepe, Kadıköy, Ataşehir, Ümraniye, and Gebze, is managed by an experienced lawyer.

Why is expert legal support essential?

Filing a mediation application under the wrong dispute type may lead to the complete rejection of the case.

Incomplete drafting of the final report causes the court to dismiss the case on procedural grounds without examining it at all.

In labor law and commercial law, which disputes are mandatory and which are optional can only be correctly assessed with professional legal knowledge.

Statements made during the mediation process are confidential; incorrect statements may lead to loss of rights in the future.

Incorrect drafting of the settlement agreement may give rise to new binding disputes for the parties.

In commercial lawsuits, the new mandatory mediation areas introduced by Law No. 7445 require professional follow-up.