Mediation

Who is the mediator?                               

 The mediator is an expert who has graduated from law school, has at least five years of experience in his profession, has completed mediation training and is registered in the mediators’ register of the Ministry of Justice. The main task is to ensure and maintain healthy communication between the parties, and the mediator makes sure that the parties understand each other’s demands and needs and thus reach a compromise.

The mediator does not have the authority to decide the dispute. In this process, the decision-making power rests only with the parties; the parties can reach an agreement on the dispute as they wish by setting the rules and conditions themselves. The mediator does not have the authority to make decisions. Confidentiality is essential in meetings, and all information and documents used are confidential.

Why Mediation?

Mediation offers a fast, economical and peaceful alternative to the judicial system. The conclusion of the legal process can take years, is a costly and exhausting process. While the process may be prolonged due to reasons such as the workload of the courts, bureaucracy, and the lack of direct communication between the parties, the litigation and trial expenses, the time, labor and travel expenses of the parties will also increase as the process gets longer.

The mediation process is a much faster process than the judicial process; it can be concluded in hours, days or weeks. The fact that the process is under the control of the parties and that the parties are personally active in the process are the two main reasons for reaching a quick conclusion; in this way, the parties express themselves better, understand each other better and can reach an effective compromise.

It is economical, the litigation expenses (fees, expenses, experts, witnesses, etc.) in the trial process are not needed in the mediation process. It does not cost the parties’ time and labor as it is resolved in a short time. The mediation costs consist only of the mediation fee to be paid to the mediator in return for his labor and overtime.

 It is a peaceful way. Long and contentious litigation processes, the tension of winning and losing can lead to the end of the relations between the parties. Mediation, which is based on mutual voluntariness and cooperation, aims to protect these relations, which are beneficial to continue. At the end of the mediation process, there is no right or wrong, no winner or loser; an agreement is reached in line with the interests of both parties. Since this agreement is constructed by the parties, the parties tend to comply with the agreement.

Confidentiality is essential. All information and documents used during the process are kept confidential unless otherwise agreed by the parties.

It is under the control of the party. The parties have control at every stage of the process. Except for labor disputes, applying to mediation is optional. Similarly, the parties can end the negotiations whenever they want, regardless of whether they reach an agreement or not. The content of the agreement reached at the end of the process, all the terms and conditions are determined by the parties completely according to the wishes and needs of the parties.

What is its Nature?

The scope of the agreement reached at the end of the mediation activity is determined by the parties; if an agreement document is prepared, this document is signed by the parties and the mediator. (Code of Civil Procedure Article 18/1) The mediation agreement is binding on both parties.

If the parties reach an agreement at the end of the mediation activity, they may request that annotation be given regarding the enforceability of this agreement document. (Code of Civil Procedure Article 18/2) If an agreement document is prepared at the end of the process, this document becomes enforceable by obtaining annotation from the courts.

The agreement document signed by the parties, their lawyers and the mediator together is deemed to be a document in the nature of a judgment without requiring an enforceability annotation. (Code of Civil Procedure Article 18/4) This document, when signed by the parties, their lawyers and the mediator, produces all the provisions and consequences of a court decision without the need for any other process.

Which Disputes Can Be Resolved?

 Mediation can be used to resolve private law disputes arising from transactions and processes on which the parties can freely decide, make changes, and use their own will in any way. (Code of Civil Procedure, Art. 1/2)

Thus, the parties can produce a result with their own decisions without needing a court decision on the outcome of the transaction or process. Examples of such transactions and processes include business, commercial, family, consumer, rental, intellectual and industrial rights disputes.

However, according to the Law on Mediation in Legal Disputes, disputes involving domestic violence are not suitable for mediation. (Code of Civil Procedure, Art. 1/2)

Disputes that cannot be resolved through mediation are basically disputes where the parties’ wills are not sufficient and the participation of a third party (mostly an official institution, prosecutor’s office, land registry office, etc.) is required for the transaction or process to take place and be valid.

Who Can Attend Mediation Meetings?

It is essentially sufficient for the mediator and the parties in dispute (employee-employer) to attend the meetings. However, if the parties wish, they can attend the meetings with their lawyers or have themselves represented by their lawyers, and employers by their employer representatives.

In cases where there is a main employer-subcontractor relationship, it is mandatory for the main employer and subcontractor to attend the mediation meetings together.

Is Attendance at Meetings Mandatory?

Mediation is a solution based on cooperation and communication, and it will not be possible to reach a solution without attending the meetings. Accordingly, the legislator has imposed certain responsibilities on the party(ies) who do not attend the meetings.

If the mediation activity ends due to one of the parties not attending the first meeting without a valid excuse, this situation is recorded in the final minutes. Even if the party who does not attend the meeting is partially or completely proven right in the case, it is held responsible for the entire litigation expense and no attorney’s fee is awarded in favor of this party.

 If the mediation ends because both parties did not attend the first meeting, the litigation expenses incurred by the parties in the lawsuits to be filed regarding the mediation activity will be left to them.

Is the Mediation Decision Final?

If an agreement is reached at the end of the mediation process, an agreement document is prepared. When this document is signed by the parties, their lawyers and the mediator, it becomes a court decision. In other words, the agreement document is valid as if a lawsuit was filed and a court decision was obtained, it can be enforced like a court decision and it binds the parties like a court decision. This agreement legally ends the dispute completely. In this case, there is no need to obtain an additional enforceability note from the court.

In Reinstatement Disputes

If the parties agree on reinstatement,

-The date of initiation

-The monetary amount of the wage for the idle period and other rights

-The compensation for not initiating the job in case the worker is not reinstated

must be stated in the final report, otherwise it is deemed that no agreement has been reached.  The final report is prepared as no agreement has been reached. If the employee does not start work on the agreed date, the termination becomes valid and the employer is only responsible for the legal consequences of this. (Labor Law Article 21/7).

If the parties cannot agree on reinstatement, they can file a lawsuit in the labor court within two weeks from the date the final report was prepared

Can I Go to Court After Mediation?

If an agreement is reached at the end of the mediation process, the parties cannot file a lawsuit regarding the agreed issues. (HUAK article 18/5) If a lawsuit is filed again regarding the agreed issues, this lawsuit will be rejected.

However, of course, if the parties cannot reach an agreement through mediation, they can apply to the court to resolve the dispute. In order to prove that mediation activity was carried out before the litigation process, the plaintiff party must attach the last report prepared by the mediator stating that no agreement was reached, to the petition.

Can Court Decisions be Appealed?

In accordance with Article 20 of the Labor Law, only appeals can be filed for invalidity of termination and reinstatement cases filed with the claim that no reason is given in the termination notice or that the reason given is not a valid reason. The appeal is closed in these cases.

Mandatory Mediation

In accordance with the Labor Courts Law, applying to a mediator is a condition of litigation in cases filed with the request for employee or employer receivables and compensation and reinstatement based on an individual or collective labor agreement. In other words, the first way to resolve labor disputes is mediation; The dispute cannot be brought before the courts without applying to a mediator. If an application is made to the courts without going to a mediator, the case will be rejected due to procedural reasons, regardless of its content, without any action being taken.

 Since When Is It Mandatory?

 Compulsory mediation for labor disputes has been included in our law since January 1, 2018.

Mandatory mediation will not be applied to cases that have been brought to the first instance courts, regional courts of justice and the Supreme Court before this date and are still ongoing.

Which Disputes Are Suitable for Mediation?

Like all disputes that want to be resolved through mediation, labor disputes, where the parties can freely and validly make decisions, take action, and obtain valid results without the need for the participation of a third party, an authority (court, administrative institutions, etc.), are suitable for resolution through mediation. These can be cited as examples of disputes that are not suitable for mediation. These disputes will be resolved in the courts.

• Tax on workers’ wages
• Insurance premiums
• Service determination cases of the insured

Why is there a need for a mediator if the parties can reach an agreement on their own?

Mediator is a third party who has no connection or relationship with the parties; He is an expert who ensures that the agreement process is carried out correctly and healthily. Labor disputes are an area where the balance of the parties can easily be disrupted. The duty of the mediator in this regard is to: ensure that the parties know their rights and act of their own will without being influenced or pressured; To help them make decisions that are fair and in the interests of both parties, and to direct the employer and employee to seek legal or technical assistance if necessary. The mediator does not have the authority to decide on the dispute like a judge, he cannot force the parties to agree, but if it is not possible for the parties to find a middle ground, the mediator can offer solution suggestions. The mediator is an impartial and independent expert who helps the employer and employee better understand each other’s needs and wishes and find common ground.

Who is within the Scope of Mandatory Mediation?

According to the Labor Courts Law, “In cases filed with the demand for employee or employer receivables and compensation and reinstatement based on the law, individual or collective labor agreement, applying to a mediator is a condition of litigation.” In other words, disputes between all employees and employers subject to the Labor Law will first go through mediation.

1-Exceptions included in the Labor Law

 Sea and Air Transport (seafarers, pilots, stewardesses, etc.)

Workplaces or businesses where agricultural and forestry work is carried out, employing less than 50 workers (including 50)

All kinds of construction works related to agriculture within the borders of the family economy

Members of a family and their relatives up to the 3rd degree (including the 3rd degree) work in homes and handicrafts without the participation of anyone from outside.

Home services (such as cooking, cleaning, laundry)

Apprentices

Athletes

Rehabilitated people (employment in private rehabilitation centers to help those who become incapacitated as a result of an accident or illness get used to work at the end of treatment)

Workplaces where three people work in accordance with the definition of Article 2 of the Tradesmen and Craftsmen Law No. 507

2- Within the scope of the Maritime Labor Law

3- (journalists) within the scope of the Press Labor Law

4- Within the scope of the Turkish Code of Obligations (employees under a general service contract)

Disputes arising from legal relations are also subject to mandatory mediation.

How Does the Process End?

The process ends if an agreement is reached, renounces the mediation activity, withdraws from the negotiations, terminates the mediation activity, or if it is determined that the dispute is not suitable for mediation. (HUAK article 17/1)

If an agreement is reached, an agreement document is prepared and this document, signed by the parties, their lawyers and the mediator, becomes a document that has the nature of a court decision.

If the parties cannot reach an agreement at the end of the mediation activity, they are free to file a lawsuit regarding the same issue. However: “If an agreement is reached at the end of the mediation activity, the parties cannot file a lawsuit regarding the agreed issues.” (HUAK article 18/5)

How to Start the Mediation Process?

The mediation process is initiated by applying to the mediation office at the other party’s place of residence or the courthouse where the work is carried out within one month from the notification of termination (this is not a limiting period). Mediation offices are located in courthouses.

Durations in Mediation

The employee whose employment contract has been terminated must apply to a mediator to request reinstatement within one month from the date of notification of termination, claiming that no reason was given in the termination notice or that the reason given was not a valid reason. (Labor Code article 20/1)

After the one-month period has passed, a mediator can be applied, and if an agreement is reached at the end of the mediation process, an agreement document can be issued.

How long does the mediation process take?

While it takes years for business cases to be concluded, the mediator must conclude the process within three weeks from the date of his appointment. In cases of necessity, this period may be extended by the mediator for a maximum of one week. (Work M.K. art. 3/10)

What is the deadline for filing a lawsuit?

If an agreement is not reached at the end of mediation, a lawsuit can be filed in the labor court within two weeks from the date of the last report. (Labor Code Art. 20/1) When mediation is applied, the litigation periods are suspended; In other words, the statute of limitations does not run and there is no loss of rights in terms of time.

Statute of Limitations

With the new article added to the labor law, the statute of limitations for workers’ compensation has been reduced to 5 years. The statute of limitations starts from the date of termination of the employment contract and is interrupted by applying to a mediator.

Regardless of which law it is subject to, provided that it arises from the employment contract, the statute of limitations for annual leave pay and the compensations specified below is five years.

a) Severance pay

b) Compensation arising from termination of the employment contract without complying with the notification requirement

c) Bad faith compensation

d) Compensation

arising from the termination of the employment contract without complying with the principle of equal treatment. The limitation period for compensation claims arising from employment contracts terminated before the law came into force (before January 1, 2018) is 10 years as before, and for those terminated after the law came into force (after January 1, 2018). In contracts, it is 5 years.

Mediation Costs

Mediation is not an expensive process like the judicial process; Trial expenses, attorney fees, fees, taxes, expert and witness expenses are not included in mediation. The only expense incurred in mediation is the mediation fee to be paid to the mediator in return for his efforts.

If the mediation process is concluded positively, the mediation fee is covered equally by the parties unless otherwise agreed.

If an agreement cannot be reached, the treasury will pay for the negotiations that lasted less than two hours, and the parties will pay equally for the negotiations that lasted more than two hours. If the parties wish, they can determine different payment shares for the fee.

Legal aid can also be used during the mediation process. If legal aid is needed, the person can benefit from legal aid upon the decision of the civil court of peace where the mediation office is located. 

How to Choose a Mediator?

Mediators must be registered in the Mediators Registry of the Mediation Department of the Ministry of Justice. The mediator is determined by the mediation office based on this list. If the parties agree on a mediator on the list, this mediator is appointed.

How Does Mediation End?

 -Parties cannot be reached

-No meeting could be held because the parties did not participate

-Reaching an agreement

-Failure to reach agreement

In these cases, the mediation activity is terminated by the mediator.