What is Mediation?
Mediation is an alternative dispute resolution method. Alternative dispute resolution refers to the resolution of disputes through means other than the judicial system, where conflicts are settled before the courts.
How is it Done?
The mediation process involves discussions between a neutral and independent third party called a mediator and the parties involved in the dispute; if they wish, parties can also attend the meetings with their lawyers.
Who is a Mediator?
A mediator is an expert who has graduated from a law faculty, has at least five years of seniority in their profession, has completed mediation training, and is registered with the Ministry of Justice Mediators Registry. Their primary role is to ensure and maintain healthy communication between the parties, helping them understand each other’s demands and needs and thereby facilitating a resolution. The mediator does not have the authority to make decisions about the dispute.
In this process, the decision-making authority solely rests with the parties; they can reach an agreement about the dispute according to their own rules and conditions. The mediator does not have decision-making authority. Confidentiality is a fundamental principle during the discussions, and all information and documents used are kept confidential.
Mediation offers a fast, cost-effective, and peaceful alternative to the judicial system. The process of going through the courts can take years, be expensive, and be emotionally draining. Factors such as court workload, bureaucracy, and lack of direct communication between the parties can prolong the process in the judicial system. As the process lengthens, the expenses for filing and litigating cases, as well as the time, effort, and travel costs incurred by the parties, will also increase.
The mediation process is much quicker compared to the judicial route; it can be concluded within hours, days, or weeks. The fact that the parties have control over the process and are actively involved are the two main reasons for this speed; this allows the parties to express themselves better, understand each other better, and reach an effective compromise.
It is cost-effective; there is no need for the costs associated with litigation (fees, expenses, expert witnesses, etc.) during the mediation process. Resolving the issue quickly does not consume the parties’ time and effort. Mediation costs only include the mediation fee to compensate the mediator for their time and effort.
It is a peaceful method. Prolonged and contentious litigation processes can lead to the breakdown of relationships between the parties due to the tension of winning or losing. Mediation, based on mutual consent and cooperation, aims to preserve these relationships that are beneficial for its continuation. At the end of the mediation process, there is no right or wrong, winner or loser; an agreement is reached based on the interests of both parties. Since this agreement is constructed by the parties themselves, they are inclined to comply with it.
Confidentiality is crucial. Throughout the process, all information and documents used are kept confidential unless otherwise agreed by the parties.
It is under the control of the parties. The parties are in control at every stage of the process. Except for labor disputes, using mediation is optional. Similarly, the parties can terminate the meetings at any time, regardless of whether an agreement is reached. The content of the agreement reached at the end of the process is entirely determined by the parties according to their wishes and needs.
What is its Nature?
The scope of the agreement reached at the end of the mediation process is determined by the parties; if an agreement document is prepared, this document is signed by the parties and the mediator. (Law on Mediation in Legal Disputes Art. 18/1) The mediation agreement is binding for both parties.
If the parties reach an agreement at the end of the mediation process, they can request an annotation regarding the enforceability of this agreement document. (Law on Mediation Art. 18/2) If an agreement document is prepared at the end of the process, this document becomes enforceable by obtaining an annotation from the courts.
The agreement document signed by the parties and their lawyers along with the mediator is considered an executive document without requiring an enforceability annotation. (Law on Mediation Art. 18/4) This document, which is prepared, signed by the parties, lawyers, and the mediator, automatically carries all the provisions and consequences of a court decision without any further action.
Which Disputes Can Be Resolved?
Mediation can be used to resolve private law disputes arising from transactions and operations in which the parties can freely make decisions, make changes, and use their own will in any way. (Law on Mediation Art. 1/2)
Thus, parties can arrive at a decision about the outcome of a transaction or operation without needing a court decision. Examples of such transactions and operations include disputes related to employment, trade, family, consumer, lease, intellectual and industrial property rights.
However, disputes involving allegations of domestic violence are not suitable for mediation under the Law on Mediation. (Law on Mediation Art. 1/2)
Disputes that cannot be resolved through mediation are mainly those in which the parties’ wills are not sufficient, and the participation of a third party (usually an official institution such as a prosecutor’s office, land registry, etc.) is required for the realization or validity of the transaction or operation.
Who Can Participate in Mediation Meetings?
In principle, the mediator and the parties to the dispute (employee-employer) are sufficient to participate in the meetings. However, if desired, parties can also attend the meetings with their lawyers or represent themselves through their lawyers, employers can be represented by employer representatives.
In cases where there is a principal-subcontractor relationship, both the principal and the subcontractor must participate in mediation meetings.
Is Participation in Meetings Mandatory?
Mediation is based on cooperation and communication; a resolution cannot be achieved without attending meetings. Accordingly, the legislator has imposed certain responsibilities on parties who do not attend meetings.
If the mediation activity ends due to the failure of one of the parties to attend the first meeting without valid justification, this situation is recorded. The party that did not attend the meeting will be held responsible for the entire litigation cost, even if they are partially or completely justified in the lawsuit, and no attorney’s fee will be awarded in their favor.
If the mediation activity ends due to both parties not attending the first meeting, the parties’ litigation costs in the lawsuits opened about the mediation activity will be left on 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 takes on the nature of a court decision. In other words, the agreement document becomes valid, enforceable, and binding on the parties, just like if a court decision had been obtained. This agreement legally terminates the dispute. In this case, there is no need to obtain an enforceability annotation from the court separately.
In Employment Disputes
If the parties agree on re-employment,
-The date of commencement of work
-The amount of money for the period in which the employee was not working and other entitlements
–Compensation for failure to re-employ the employee
must be stated in the final minutes; otherwise, it will be deemed that an agreement has not been reached. The final minutes are prepared in the form that an agreement has not been reached if that is the case. If the employee does not start working on the agreed date, the termination becomes valid, and the employer is only responsible for the legal consequences of that.
If the parties cannot agree on re-employment, they can file a lawsuit in the labor court within two weeks from the date the final minutes were prepared.
Can Court Proceedings Be Initiated After Mediation?
If an agreement is reached at the end of the mediation process, no lawsuit can be filed regarding the matters agreed upon. (Law on Mediation Art. 18/5) If a new lawsuit is filed regarding the agreed issues, this lawsuit will be dismissed.
However, of course, if the parties cannot reach an agreement through the mediation process, they can resort to the court to resolve the dispute. In terms of proving that mediation has been conducted before the lawsuit process, the plaintiff must attach the final minutes prepared by the mediator, indicating that no agreement was reached, to the lawsuit petition.
Can Court Decisions Be Appealed?
According to Article 20 of the Labor Law, in cases of termination where no reason is stated or the stated reason is not valid, and in cases of reinstatement claims based on individual or collective labor agreements, only the appeal route can be used. Appeals can be made to the Regional Courts of Justice. The appeal route is closed in these cases.
According to the Law on Labor Courts, in cases of individual or collective labor claims based on individual or collective labor agreements, it is mandatory to apply to a mediator. In other words, mediation is a prerequisite for filing a lawsuit; the dispute cannot be brought before the courts without resorting to mediation. If a lawsuit is filed in court without resorting to mediation, the lawsuit will be rejected on procedural grounds without examining its content.
Since When is it Mandatory?
Mandatory mediation for labor disputes has been in our legal system since January 1, 2018.
For cases filed with the first-instance courts, regional appellate courts, and the Court of Cassation before this date and are still ongoing, mandatory mediation will not be applied.
Which Disputes are Suitable for Mediation?
Like any dispute that parties want to resolve through mediation, labor disputes are also suitable for mediation if they involve transactions and operations in which the parties can freely and validly make decisions, make changes, and achieve valid results without the participation of a third party or an authority (such as a court, administrative bodies, etc.). (Law on Mediation Art. 1/2)
Disputes that are not suitable for mediation can be given as examples. These disputes will be resolved in the courts:
-Deductions from employee wages except taxes
-Determination of service for the insured
Why is Mediation Needed if Parties Can Agree Themselves?
A mediator is an independent third party without any connection or relationship with the parties; they are an expert who ensures the proper and healthy conduct of the agreement process. Labor disputes are an area where the balance between the parties can easily be disrupted. In this regard, the mediator’s role is to ensure that the parties act with their free will, without being influenced or pressured, to help them make a fair decision that is in line with the interests of both parties, and if necessary, to guide the employer and the employee towards seeking legal or technical assistance. The mediator does not have the authority to force the parties into an agreement, nor the authority to act like a judge. The mediator’s role is to help the parties understand each other’s needs and interests, facilitate effective communication, and provide guidance and suggestions when needed.
In Which Disputes is Mediation Mandatory?
-Trade union compensation
-Wages, bonuses, incentives
-Annual leave pay, weekly rest day pay, national holiday and general holiday pay
-Unfair competition compensation
-Training expenses for employees
Which Disputes Are Not Subject to Mandatory Mediation?
Mediation is not mandatory for cases involving claims for material and moral compensation arising from occupational accidents or occupational diseases, as well as disputes related to determination, objection, and recourse regarding these matters. In these disputes, mediation is optional, meaning that the parties can choose to go to a mediator if they wish, but it is not a mandatory step before the lawsuit process.
Who is Covered by Mandatory Mediation?
According to the Labor Courts Law, “In cases filed for individual or collective worker or employer receivables and compensation based on individual or collective labor agreements, it is a prerequisite to apply to a mediator.” In other words, all disputes between workers and employers subject to the Labor Law will go through the mediation process before going to court.
Exceptions as stated in the Labor Law:
-Maritime and aviation works (seamen, pilots, flight attendants, etc.)
-Agricultural and forestry worksites or establishments employing fewer than 50 employees (including 50)
-All kinds of construction works related to agriculture within the scope of family economy
-Jobs performed within households and involving family members and relatives up to the third degree (including the third degree) without the involvement of an external party
-Domestic services (cooking, cleaning, laundry, etc.)
-Rehabilitated individuals (employment in special rehabilitation centers for those unable to work due to accidents or illness)
-Businesses where three people work and that fall within the scope of Article 2 of Law No. 507 on Craftsmen and Artisans
-Those covered by the Maritime Labor Law
-Those covered by the Press Labor Law (journalists)
-Those covered by the Turkish Code of Obligations (employees covered by general service contracts)
Legal disputes arising from the above-mentioned relationships are also subject to mandatory mediation.
How Does the Mediation Process End?
The mediation process ends with the following conditions: reaching an agreement, abandonment of mediation, withdrawal from meetings, termination of the mediation process, or determining that the dispute is not suitable for mediation. (Article 17/1 of the Mediation Law)
If an agreement is reached, an agreement document is prepared, which is signed by the parties, their lawyers, and the mediator, and it becomes a document with the nature of a court decision.
If the parties fail to reach an agreement through mediation, they are free to resort to the same subject matter in court within two weeks from the date of the last report. However, if an agreement is reached at the end of the mediation process, no legal action can be taken regarding the agreed-upon matters. (Article 18/5 of the Mediation Law)
How is the Mediation Process Initiated?
The mediation process is initiated by applying to the mediation office at the courthouse of the place of residence of the other party or the location where the work is performed within one month (not a statute of limitations) from the date of the termination notice. Mediation offices are located in courthouses.
While labor cases can take years to conclude, the mediator is required to conclude the mediation process within three weeks from the assignment, and this period can be extended by up to one week by the mediator in exceptional cases. (Article 3/10 of the Labor Courts Law)
What is the Deadline for Filing a Lawsuit?
If an agreement is not reached at the end of the mediation process, a lawsuit can be filed in the labor court within two weeks from the date of the last report. (Article 20/1 of the Labor Law) When mediation is initiated, the filing deadlines for lawsuits are suspended, meaning that the statute of limitations does not apply, and there is no risk of losing rights due to time limitations.
Statute of Limitations
With the addition of a new article to the Labor Law, the statute of limitations for workers’ compensations has been reduced to five years. The statute of limitations starts from the date of termination of the employment contract and is interrupted by applying to a mediator.
For compensations arising from termination of employment contracts, regardless of which law they are subject to, the statute of limitations is five years for annual leave pay, severance pay, compensation for termination without notice, compensation for bad faith, and compensation for termination without adhering to the principle of equal treatment.
For employment contracts terminated before the law entered into force (before January 1, 2018), the statute of limitations for compensation claims remains ten years, while for contracts terminated after the law entered into force (after January 1, 2018), the statute of limitations is five years.
Mediation is not as costly as a litigation process; expenses such as court costs, attorney fees, fees, taxes, expert fees, and witness costs are not applicable to mediation. The only expense that arises in mediation is the mediation fee to be paid to the mediator for their services.
In case of a successful outcome in mediation, the mediation fee is shared equally between the parties, unless otherwise agreed.
If no agreement is reached and the mediation meetings last for less than two hours, the state treasury covers the cost; if the meetings exceed two hours, the parties share the additional cost equally. Parties can agree on different payment ratios for the fee if they wish.
Legal Aid can also be utilized during the mediation process. In cases where legal aid is needed, the foreigner can benefit from legal aid by obtaining a decision from the civil court of peace in the place where the mediation office is located.
How is the Mediator Selected?
Mediators must be registered in the Mediators Registry of the Ministry of Justice Mediation Department. The mediator is selected from this list by the mediation office at the courthouse. If the parties agree on a mediator listed in the registry, that mediator will be appointed.
How Does Mediation End?
Mediation ends in the following cases:
-Parties cannot be reached.
-Meetings cannot be held due to the absence of the parties.
-An agreement is reached.
-An agreement cannot be reached.
In any of the above cases, the mediator terminates the mediation process.