Deficiency in the Mediation Final Record: The Right to Sue Cannot Be Sacrificed to Formalism

Employment Claims, the Right of Access to Court and the Mediator's Duty to Inform in Light of the AYM's Durmuş Çelik Decision

Decision examined: Constitutional Court, Second Section, Durmuş Çelik, Application No: 2023/33449, 18 May 2026. Official Gazette: 20 October 2026, No. 33406. Type of decision: Individual application decision. [1]

Why was a case that was well founded on the merits dismissed on procedural grounds?

An employee may have taken a claim to mediation, no agreement may have been reached, and the employee may then have gone to court. If the court nonetheless does not reach the merits of the case because the claims were not written out one by one in the final record, a question arises: can a procedural step that was actually carried out be treated as not having been carried out because it was recorded incompletely?

This is the problem discussed in the Durmuş Çelik application. After his employment contract ended on account of military service, the applicant applied to mediation on 10 August 2018. In the documents dated 3 September 2018, the dispute was described in general terms as a dispute arising from the employee–employer relationship. No agreement was reached. On 28 September 2018 the applicant brought an action claiming severance pay and overtime pay. [1, §§2, 17]

The Afyonkarahisar Labor Court upheld the claim. On the employer's appeal, the 8th Civil Chamber of the Konya Regional Court of Appeal set aside the first-instance judgment and dismissed the case on procedural grounds for want of the mediation precondition to litigation. The reasoning was that the final record and the application form relied on contained general wording and did not show the claim items separately. [1, §§3–4]

The dismissal here was not based on an assessment that the employee was not entitled to severance pay or had not worked overtime. It was a procedural interpretation that prevented the merits of the dispute from being examined. The way the record was drawn up thus became the point that determined whether the claim could be examined by a court at all.

The AYM's review also concentrated on this point: had the rules on mediation as a condition precedent to litigation been applied proportionately in view of the consequence placed on the applicant? Could the court, looking only at the wording used in the document, accept that the claim before it had not been taken to mediation? [1, §§11–12, 20–22]

Is every claim not written in the record deemed not to have been raised?

In paragraph 18 of its decision, the AYM set out its approach expressly:

“What matters in mediation talks is whether the employment claims were made the subject of the mediation talks by the parties.” [1, §18]

This sentence defines the centre of the review. The scope of an application cannot be reduced to whether a box was ticked or whether a particular word appears in the record. Whether the claim that is the subject of the lawsuit was included in the process must be considered together with the legally assessable records of the specific case.

In the Durmuş Çelik decision, the AYM assessed together the applicant's intention to put severance pay and overtime pay up for negotiation, the employer's failure to object to that scope, and the employer's statement entered in the record. It was recorded that the employer had stated by telephone that the applicant had no receivable and that it would not pay compensation. The Court concluded that, in these circumstances, it could not be said that the claims in question had not been made the subject of the mediation. [1, §§17–18]

The silence of the record does not in itself prove that a party kept silent. That a claim is not expressly named in the document is of course taken into account. But what that means must be tested against the other data in the file. Otherwise a deficiency in the record is treated as if there had been no application at all.

The point argued here is not to diminish the importance of the document. It is to make the document answer the right question: was this claim within the scope of the mediation process conducted before the lawsuit was filed? The answer cannot be given merely by pointing out the missing word.

Three separate problems cannot be turned into the same ground for dismissal

Not every deficiency relating to mediation has the same legal nature. Three situations that can be confused in practice must be kept especially distinct. [2, Art. 3/2], [1, §§16–22]

In the first situation, what is missing is the application that had to be made before the lawsuit. In the second, the document recording the outcome of an application that was made has not been attached to the statement of claim. In the third, the document exists; what is disputed is what it recorded and what it described incompletely.

The consequence of this distinction is clear: Failing to submit the document, drafting the document inadequately and never taking the step at all are not the same fact. Merging all three into a single finding that "mediation was not applied for" moves the review of the precondition to litigation away from what actually happened.

On the other hand, the one-week peremptory period cannot be read as an opportunity to make, during the lawsuit, a mediation application that was never made before it. The period in the law concerns the submission to the court of the existing final record of non-agreement. The Durmuş Çelik decision likewise did not turn this period into a general period for remedying every kind of deficiency. [2, Art. 3/2]

When the purpose of the procedure and the form of the document trade places

Mediation as a condition precedent to litigation aims to make it possible to resolve disputes arising from the employment relationship more quickly and at lower cost, without taking them to court. The AYM accepts this aim as legitimate. The problem is the measure of the burden that the procedural rule serving this aim places on the individual in the specific case. [1, §12]

If it is apparent from the available records that a claim was taken to mediation and the process ended in non-agreement, what deficiency does dismissing the case because of a lack of wording in the final record actually cure? Does it direct the person to a remedy that was in fact not used, or does it place the incomplete document of a remedy that was used ahead of the whole process?

This is exactly where the problem arises. It may be right to say that a record should have been drawn up more clearly. To move from there to the conclusion that the process that is the subject of a record not clearly drawn up never took place is a different step, which requires separate reasoning.

A document is drawn up to make the act performed visible. A deficiency in the document does not by itself annul an act that is understood to have taken place. The first assessment concerns the order of documents; the second concerns the individual's access to court. The heavier the consequence, the more carefully the link between the two must be established.

The guarantee of access to court in Article 36 of the Constitution also covers the application of procedural rules. That a dismissal has a statutory basis does not show that its application is proportionate in every case. In the Durmuş Çelik decision too, it is this distinction that led to the violation: a legitimate precondition to litigation had placed an excessive burden on the applicant through a rigid interpretation detached from the facts of the case. [1, §§9–12, 20–22]

Why is the mediator's duty to explain decisive?

The second important aspect of the decision is that it draws attention to by whom and how the final record is drawn up. Under Article 17 of Law No. 6325, the final record is drawn up by the mediator. Apart from the conclusion of the activity, the parties decide which matters are to be written into the record; the mediator also gives the necessary explanations about the record and its consequences. The duty to enlighten at the beginning of the process is separately regulated in Article 11 of the Law. [3, Art. 11, Art. 17/2–3]

The fact that the parties have a say in the content of the record does not remove the duty to explain. Taking part in the drawing up of a document is not the same as knowing the procedural consequence that every deficiency of wording in it will later have. This is where the meaning of the law giving the mediator a duty to explain emerges.

The AYM emphasised that the Regional Court of Appeal had made no finding that the applicant had been informed that the claim items on which no agreement was reached had to be stated in the record. In these circumstances it assessed placing the whole responsibility for making the general wording concrete on the applicant as an excessive burden. [1, §19]

This reasoning requires the following question to be asked: Without it being shown what the person was informed of, why is the entire consequence of a deficiency in a document order that calls for expertise placed on that person alone? If it is argued that the employee did not provide the clarity expected of him or her, whether the other actors in the process gave the explanation incumbent on them must also be part of the assessment.

The duty to inform must not be confused with legal advice

The mediator's giving explanations about the content and consequences of the record does not mean taking on the role of lawyer for one of the parties. Recommending a legal strategy about which action should be brought and explaining what the document drawn up means and how it was prepared are different duties.

The prohibition on giving legal advice in Article 17/5 of the Regulation on the Law on Mediation in Civil Disputes is preserved. Alongside it, the duties of enlightenment and explanation provided by the Law must also be performed. Impartiality and informing cannot be presented as mutually exclusive obligations. [3, Art. 11, Art. 17/3], [4, Art. 17/5]

A finding of violation does not automatically establish the mediator's fault

In the Durmuş Çelik decision, the AYM did not rule on the mediator's legal or disciplinary liability. The AYM's emphasis is that the Regional Court of Appeal made no finding that information had been given and placed all the consequences of the deficiency on the applicant. A court's deficiency in assessment is not the same as a finding that the mediator breached his or her duty. [1, §19]

The decision therefore shows the importance of the mediator's duty; it does not show that every incomplete record automatically gives rise to fault and liability in damages. Such an allegation must be examined separately, on the conditions of the liability concerned and the evidence in the specific case.

The constitutional approach running from the application form to the final record

The Durmuş Çelik decision can be read on its own, but it becomes more illuminating when considered together with earlier individual application decisions. The common problem is that the real scope of the mediation was lost sight of because of a deficiency in a document.

The difference between the form and the final record in the Ferhat Küçük decision

In the AYM's Ferhat Küçük decision of 24 October 2024, it was significant that, although the application form did not state a reinstatement claim, it was apparent from the final record that reinstatement had been made the subject of the mediation. Assessing the parties' intentions and the final record together, the Court stated that it could not be accepted that the precondition to litigation had not been met on the basis of a deficiency in the application form. [5, §§18, 21–26]

The decision shows that the application form cannot be turned into an absolute yardstick detached from the other records showing what happened in the process.

Reading the scope of the claim correctly in the Ulaş Özel decision

In the Ulaş Özel decision of 3 March 2026 as well, the rigidity in assessing a reinstatement claim on the basis of the application form and the final record was examined. The AYM found it problematic, from the standpoint of the right of access to court, to conclude that the precondition to litigation had not been fulfilled without regard to the data showing that the claim had been brought within the scope of the process. [6, §§15–21]

In this file, the fact that the employers did not attend the meeting is also significant. It cannot be concluded that, in every case, the two sides must actually come together and negotiate with each other for the precondition to litigation to be met. The law also provides for the mediation activity to end without a meeting being held because the parties could not be reached or did not attend. [6, §15], [2, Art. 3/11]

What the Durmuş Çelik decision adds

In the Ferhat Küçük decision, the final record came to the fore in assessing the deficiency in the application form, whereas in the Durmuş Çelik decision the final record itself contains general wording. This time the AYM assessed together the circumstances of the process, the applicant's intention, the employer's recorded statement and the mediator's duty to inform. [1, §§13, 17–19]

The contribution of the new decision becomes clear at this point. If the final record itself also contains general wording, the review does not end there. Whether the claim was included in the process and to whom, and on what reasoning, the consequences of the deficiency are attributed must continue to be investigated.

The boundary between the Court of Cassation's search for clarity and excessive formalism

In its decision of 14 May 2024, File No. E.2024/4484, Decision No. K.2024/8260, the 9th Civil Chamber of the Court of Cassation (Yargıtay) stressed that the claims on which agreement was or was not reached must be stated separately in the final record. The decision takes a stricter approach to records with general wording as regards applications after 2 June 2018. [7, V/C/3, items 5–9]

Writing the claims out clearly reduces disputes over scope; it is appropriate for the final record to be prepared with that clarity. Nevertheless, a document that should have been drafted clearly having been prepared incompletely, and the case being closed entirely because of that deficiency, are separate assessments.

The AYM's approach sets a constitutional limit on the second assessment. When the review of the precondition to litigation is carried out, the whole of the specific case, the consequence placed on the person and the dimension of information must be taken into account. It would not be correct to present the Durmuş Çelik decision as "the Court of Cassation's case law has been overturned". The decision reveals the disproportionate consequence that a particular interpretation produced in the specific case. [1, §§19–22]

Drawing up a clear record is the responsibility of the practitioner. Determining the consequence of an incomplete record proportionately is the responsibility of the court. The importance of the first duty does not remove the second.

How should the limits of the decision be read?

This decision does not mean that every record written in general terms covers all employment claims. The connection of each claim that is the subject of the lawsuit with the earlier mediation process must be assessed. For example, if it has been established that only a severance pay claim was taken to mediation, it cannot be assumed that every different claim raised later is automatically within that process.

Nor is the decision a norm-review decision abolishing mediation as a condition precedent to litigation. In an individual application, what was examined was whether a particular procedural act in the proceedings violated the right of access to court. The AYM ordered a retrial to remedy the consequences of the violation; it did not directly adjudicate the employee's claims. [1, §§27–28 and operative part]

The same care is needed with regard to time limits for suit. In the AYM's Utku Öner decision, the missing of an express statutory time limit for filing suit in a process pursued with a lawyer was assessed separately; the absence of information on legal remedies and time limits in the final record was not treated as a violation of the right of access to court. It cannot be concluded from the Durmuş Çelik decision that time limits do not run unless the mediator notifies each time limit for filing suit. [8, §§39–41]

The strength of the decision cannot be sought in its rendering all procedural rules ineffective. Its strength lies in demanding a concrete and proportionate examination against disregarding an obligation understood to have been fulfilled because of its incomplete recording.

What questions should be asked in pending cases?

In a file in which an objection of lack of the precondition to litigation is met because of general wording in the final record, merely citing the name of the Durmuş Çelik decision will not suffice. A clear link must be drawn between the AYM's reasoning and the features of the file at hand.

The first question is with which mediation application the claim that is the subject of the lawsuit is associated. The name of the claim, the timing of the process and its scope before the lawsuit was filed should be explained. If there are several claims, the same exercise must be carried out for each; a record relating to one claim must not be extended to all the others without explanation.

The second question is where the deficiency lies. In the application form, in the final record, in the attachment of the document to the statement of claim, or in the claim really never having been taken to mediation? Without this diagnosis the appropriate legal consequence cannot be determined.

The third question is what data the court did not assess. Records capable of legally showing the scope of the precondition to litigation can reveal what the general wording in the document meant in the specific case. Where these records were not discussed in the decision, the deficient assessment must be shown expressly; it is not enough merely to say that "formalism was applied".

The fourth question is how the explanations given while the record was drawn up were evaluated. The dimension of information on which the AYM focused should be adapted to the file; it should not be assumed in advance that information was or was not given. The fact asserted should be linked to its support in the file. [1, §19]

Finally, the weight of the dismissal and the purpose of the procedural rule should be discussed together. If it is apparent that the mediation route was used for the claim put forward, it should be made concrete why blocking access to the merits solely because of a deficiency in the language of the document is disproportionate. This is not a formula that predetermines the outcome of every case, but a way of carrying the constitutional reasoning into the file.

Investigating the scope does not lift the confidentiality rules

Determining which claim was taken to mediation and using settlement offers made during the talks as evidence of the existence of a receivable are different matters. The approach of the Durmuş Çelik decision on the first matter does not grant an unlimited power of use on the second.

The confidentiality rules in Articles 4 and 5 of Law No. 6325, and the rules on the non-usability of certain statements or documents, are preserved. Proposals put forward in the talks, settlement offers or concessions made within the negotiation do not become free evidence proving the merits of the case merely because of this decision. [3, Art. 4–5]

For this reason, the purpose for which a document will be used matters in the review. Records that can lawfully be used to show the scope of the application and the outcome of the process should be distinguished from content subject to confidentiality and the prohibition on use. While defending access to court, the safeguards that allow mediation to be conducted in confidence must not be lost sight of.

Conclusion

The Durmuş Çelik decision does not reduce the importance of the mediation final record. It sets a limit on assessing the final record detached from the real process it documents. Between a claim's name being written incompletely and that claim never having been raised there is a difference that directly affects the right to sue.

Final records should be drawn up clearly, the scope of the claim should be distinct, and the mediator should give the necessary explanations. But a court faced with a deficiency in any of these cannot place the whole consequence on the applicant without examining the real process and the circumstances of the deficiency. In particular, treating a claim that is understood to have been made the subject of mediation as never having been taken to mediation merely because it was recorded in a general phrase makes the freedom to seek legal remedies dependent on the language of a document. [1, §§18–22]

The question to be asked is therefore not merely “Which word is missing from the record?” The real question is: “Was the claim that is the subject of the lawsuit really taken to mediation; and if so, on what concrete and proportionate ground is the route to court being closed?”

The answer to this question cannot be given without investigating the real scope of the application. It is only in this way that the balance between the order the procedure protects and the individual's access to court can be struck.

Frequently Asked Questions

Does failure to write the claims separately in the final record necessarily require the case to be dismissed?

No. According to the Durmuş Çelik decision, if it is apparent in the specific case that the claims were made the subject of the mediation, dismissing the case relying solely on the final record's having general wording may violate the right of access to court. That said, not every record with general wording covers all claims. Whether the claim that is the subject of the lawsuit was included in the earlier process must be assessed separately. [1, §§18–22]

Is failing to submit the final record the same as never having applied to mediation?

No. Where the process was completed but the final record was not attached to the statement of claim, Article 3/2 of Law No. 7036 provides for a peremptory period of one week for submitting the document, together with a warning. Not having made the necessary mediation application at all before the lawsuit is a different deficiency in the precondition to litigation. The one-week period should not be understood as an opportunity to make an application that was not made afterwards. [2, Art. 3/2]

Is the mediator obliged to give explanations about the drawing up of the final record?

Yes. Article 17/3 of Law No. 6325 provides for the necessary explanations to be given about the record and its consequences. In the Durmuş Çelik decision, the AYM likewise emphasised informing about the content of the record and how it is drawn up. This duty is not a duty to recommend a legal strategy to one of the parties or to act as that party's lawyer; the prohibition on legal advice is separately preserved. [1, §19], [3], [4]

If the employer did not attend the meeting, is the precondition to litigation deemed unmet?

Non-attendance does not in itself produce such a consequence. The law also provides for the process to be ended without a meeting being held because the parties could not be reached or did not attend. What must be assessed is whether the application covered the claim that is the subject of the lawsuit and whether the process was conducted and concluded in accordance with the legislation. In the Ulaş Özel decision as well, the employers' non-attendance at the meeting was not made the basis for concluding, by itself, that the precondition to litigation had not been met. [2, Art. 3/11], [6, §§15–21]

Did the AYM order the employee's claims to be paid in this decision?

The AYM found a violation of the right of access to court and ordered a retrial. It did not directly decide the merits of the claims. The applicant's claims for pecuniary and non-pecuniary compensation were dismissed. The TRY 41,480.40 in the operative part consists of litigation costs made up of court fees and attorney's fees; it is not compensation awarded because of the violation. [1, §§27–28 and operative part]

Does the decision show that the mediator is automatically liable?

No. The AYM examined the violation of the right of access to court in the specific proceedings. It assessed the absence of a finding that information had been given and the placing of all the consequences of the deficiency on the applicant. No automatic conclusion can be drawn as to the mediator's professional, disciplinary or compensation liability; such an allegation is examined separately within its own conditions. [1, §19]

Sources

1 — Constitutional Court, Second Section, Durmuş Çelik, Application No: 2023/33449, 18.05.2026; Official Gazette 20.10.2026, No. 33406. In particular §§9–22, 27–28 and operative part. Official decision PDF · AYM Case-Law Information Bank.

2 — Labor Courts Law No. 7036, Art. 3/2 and Art. 3/11. Ministry of Justice legislation record · TBMM adopted text.

3 — Law No. 6325 on Mediation in Civil Disputes, Arts. 4–5, Art. 11 and Art. 17/2–3. Ministry of Justice legislation record. The basic duty to explain the final record and its consequences was also in force in the 2018 process at issue in the application.

4 — Regulation on the Law on Mediation in Civil Disputes, in particular Art. 17/5; Official Gazette 02.06.2018, No. 30439. Text of the regulation on the Council of Europe website.

5 — Constitutional Court, Second Section, Ferhat Küçük, Application No: 2020/19910, 24.10.2024; in particular §§18, 21–26. AYM decision record · Full text of the decision.

6 — Constitutional Court, Second Section, Ulaş Özel, Application No: 2022/82055, 03.03.2026; in particular §§15–24. AYM decision record · Full text of the decision.

7 — Court of Cassation 9th Civil Chamber, 14.05.2024, E.2024/4484, K.2024/8260; section V/C/3 Assessment, items 4–9. Full text of the decision.

8 — Constitutional Court, Second Section, Utku Öner, Application No: 2019/34103, 10.01.2024; in particular §§39–41. AYM decision record.

9 — Şamil Demir, “AYM: A deficiency in the mediation record cannot on its own be a ground for dismissing the case”, Hukuki Haber. Commentary on the subject. The legal analysis is based on the decisions and legislation cited above.