Apart from labor law, compulsory (case requirement) mediation is applied in three main areas: commercial disputes, consumer disputes and certain real estate disputes. Below are the legal basis, scope and important exceptions of each.
Compulsory Mediation in Commercial Cases (TTK Article 5/A)
In accordance with the Turkish Commercial Code No. 6102 Article 5/A, it is a condition for a lawsuit to apply to a mediator before filing a lawsuit regarding receivables and compensation claims, the subject of which is the payment of a certain amount of money, among the commercial lawsuits stipulated in TCC Article 4 and other laws.
Duration
The mediator finalizes the application within 6 weeks from the date of appointment. In cases of necessity, the mediator may extend this period by a maximum of 2 weeks.
Demand Backlog Problem
If there is more than one claim in a case and some of them are subject to quantity (subject to mediation) and some of them are not subject to quantity, the commercial mediation requirement does not apply to the entire case. The 11th Civil Chamber of the Supreme Court of Appeals (Decision No: 2020/4734) ruled that cases where there is a backlog of cases and there is a connection between the demands should be resolved by the court without being subject to commercial mediation.
Compulsory Mediation in Consumer Disputes (TKHK art.73/A)
According to Article 73/A of the Law on Consumer Protection No. 6502, it is a requirement to apply to a mediator before filing a lawsuit in disputes heard in consumer courts.
Exceptions — The obligation does not apply in the following disputes:
- Disputes within the scope of the duty of the consumer arbitration committee
- Objections to the decisions of the consumer arbitration committee
- Cases specified in the sixth paragraph of TKHK Article 73/A
- Cases specified in TKHK article 74
- Disputes that are in the nature of a consumer transaction and arise from the same immovable property
Compulsory Mediation in Real Estate Disputes (6325 art.18/B)
With Article 18/B of Law No. 6325, which came into force as of 01.09.2023, some real estate disputes have been included within the scope of mediation as a condition of litigation:
- Disputes arising from the rental relationship (except for the evacuation of rented immovable properties through execution without judgment in accordance with the Enforcement and Bankruptcy Law No. 2004).
- Disputes regarding the distribution of movable and immovable properties and the elimination of partnership.
- Disputes arising from the Condominium Law dated 23.06.1965 and numbered 634.
- Disputes arising from neighbor's rights.
Saving Authority Commentary
According to Article 17/B of the same law, if the parties agree in writing in disputes regarding the transfer of real estate or the establishment of limited real rights on it, upon the request of the mediator, an annotation restricting the power of disposition is given to the land registry for a period not exceeding 3 months. The annotation is lifted at the end of the period or upon the request of the parties.
When Agreement is Reached — Enforceability
The legal value of the mediation agreement document in all three areas is determined by Article 18 of Law No. 6325:
- The agreement document signed jointly by the parties, their lawyers and the mediator has the nature of a decision without requiring an annotation of enforceability.
- In commercial disputes, it is also sufficient for the lawyers and the mediator to sign together.
- For documents signed without a lawyer, an application is made to the civil court of peace for an annotation of enforceability.
Suit in Case of Non-Agreement
In case of disagreement in all three areas, the final report of mediation is added to the petition and a lawsuit is filed in the competent court (commercial, consumer or civil law of first instance). If the report is not submitted, the court gives a definitive period of one week; Otherwise, the case will be rejected due to procedural reasons.
Role of the Lawyer
Entering the mediation negotiation unprepared may lead to not receiving the full value of the claim or to missing important legal risks. Since the agreement document is in the nature of a decree, its content must be constructed extremely carefully. Our office; Effectively represents his client at the mediation table by planning accounts receivable, document review and negotiation strategy in advance.