Mediation; It is an alternative dispute resolution method that allows the parties to resolve their disputes before a lawsuit is filed or during trial, with the facilitation of an impartial and expert third party (mediator) chosen by their free will. The legal framework is drawn by the Law on Mediation in Civil Disputes No. 6325.
The mediator does not impose judgment on the parties; evaluates their interests and mediates a common solution. The process is confidential; At the end, a report of agreement or disagreement is prepared.
Distinction between Optional and Mandatory Mediation
Optional Mediation
It is the method used in private law disputes over which the parties can freely dispose, although it is not legally required. Claims for material and moral damages, inheritance sharing, property regime disputes after divorce, and commercial contract disputes are suitable for voluntary mediation.
Compulsory Mediation (Litigation Requirement)
In some types of disputes, applying to a mediator before filing a lawsuit is a condition of litigation. A lawsuit filed without fulfilling the condition is rejected by the court procedural. Mandatory mediation is mainly applied in the following areas:
- Labor Law — Article 3 of the Labor Courts Law No. 7036
- Commercial Cases — Article 5/A of Turkish Commercial Code No. 6102
- Consumer Disputes - TKHK No. 6502 Article 73/A
- Certain Real Estate Disputes - Law No. 6325 art.18/B (as of 01.09.2023)
Basic Principles of the Process
Confidentiality (art.4)
Mediator, parties and everyone present in the process; is obliged to keep information, documents and statements confidential. A person who violates confidentiality is punished with a prison sentence of up to six months in accordance with Article 33 of the law.
Equality and Voluntariness (art.5)
Parties have equal rights throughout the process; No one can be forced to participate in mediation. Statements and documents submitted during the mediation activity cannot be used as evidence in any subsequent lawsuit or arbitration.
Impartiality (art.8-9)
The mediator treats everyone involved in the process impartially and equally; It must notify in advance situations that may raise doubts about its impartiality.
Mediator's Fee (Art.7)
The mediator receives a fee according to the Mediator Minimum Wage Tariff in effect on the date the activity ends. Unless otherwise agreed, fees and expenses are shared equally by the parties.
Legal Value of the Agreement Document (Art.18)
If the parties reach an agreement at the end of the process, an agreement document is issued. When this document is signed by the parties, their lawyers and the mediator - for commercial disputes, it is sufficient for the lawyers and the mediator to sign it together - it is considered a document in the nature of a judgment (court decision) without requiring an annotation of enforceability
Annotation of enforceability for documents signed without the presence of a lawyer is requested from the civil court of peace where the mediator works before filing a lawsuit. The scope of the review is limited only to whether the agreement is suitable for mediation and enforcement; The court cannot change the content.
Period of Application to Mediation (Art. 13, Art. 15)
The parties may agree to use a mediator before the lawsuit is filed or during the trial. If the mediator offer forwarded to the other party is not responded positively within 30 days, it is deemed rejected. If the parties go to mediation together during the trial, the court postpones the trial for a period not exceeding three months; This period may be extended up to three months.
Disputes Not Suitable for Mediation
Disputes over which the parties cannot freely dispose are not suitable for mediation. The main ones:
- Crime-related disputes (solved within the scope of CMK mediation)
- Disputes involving allegations of domestic violence
- Disputes regarding child custody
- Cases for correction/change of civil registry
- Full jurisdiction and annulment cases in administrative jurisdiction
- Disputes arising from tax law
- Declaration cases such as service determination regarding social security
Why is Representation by a Lawyer Important?
Since the mediation agreement document is a judgment document, its content may lead to irreversible loss of rights. It is of great importance to obtain legal support before the process begins in order to calculate the amount of receivables correctly, evaluate legal risks in advance and establish a negotiation strategy.