Mediation (arabuluculuk)

Scope

Law No. 6325 on Mediation in Civil Disputes applies to private-law disputes arising from matters or transactions over which the parties may freely dispose, including those with a foreign element; disputes involving allegations of domestic violence are not suitable for mediation (Art. 1). A mediator is a natural person registered in the register of the Ministry of Justice; if the parties cannot reach a solution, the mediator may also make a settlement proposal (Art. 2). The parties are free to apply, to continue the process or to withdraw; the provisions on mediation as a condition precedent to litigation are reserved (Art. 3). Mediation as a condition precedent to litigation (in practice “mandatory mediation”) is, according to current regulation, provided mainly for the following disputes: employee or employer receivables and compensation, excluding workplace accident and occupational disease cases, reinstatement claims and related actions for annulment of objection, negative declaratory actions and actions for recovery of payment (Law No. 7036 on Labor Courts, Art. 3); among commercial lawsuits, claims, compensation, actions for annulment of objection, negative declaratory actions and actions for recovery of payment whose subject is a sum of money (Turkish Commercial Code (TTK) Art. 5/A); disputes before consumer courts that are not excepted (Law No. 6502 on Consumer Protection, Art. 73/A); lease disputes other than eviction through enforcement proceedings without a judgment, and disputes on dissolution of co-ownership, condominium ownership and neighbor rights (Law No. 6325, Art. 18/B). The scope has been expanded by statutory amendments; exceptions are regulated in the relevant articles.

Practical significance

In cases where it is a procedural prerequisite, a lawsuit filed without applying to a mediator is dismissed on procedural grounds; the claimant must attach to the statement of claim the final record showing that no agreement was reached (Art. 18/A). From the application until the final record, the statute of limitations is suspended and the preclusive period does not run. In mediation as a condition precedent to litigation, a party whose failure to attend the first meeting without a valid excuse causes the mediation to end bears half of the litigation costs that the other party would otherwise have to pay, even if that party prevails in the lawsuit; and in that party’s favor only half of the attorney fee award is ordered (Art. 18/A). This sanction is not applied against the consumer (Law No. 6502, Art. 73/A). If the settlement document is given an enforceability annotation, the document is treated as a judgment (ilam) (Art. 18).

Concepts often confused

Mediation is most often confused with arbitration: an arbitrator resolves the dispute by a binding decision and only an action to set aside can be brought against the award; a mediator, by contrast, does not decide but facilitates the parties’ agreement. Reconciliation (uzlaştırma) in criminal procedure is also a separate institution; in the offenses listed in the statute, it is conducted between the suspect and the victim or the person harmed by the offense (Code of Criminal Procedure (CMK) Art. 253). If no agreement is reached in mediation, the dispute is resolved by litigation or, where there is a valid arbitration agreement, by arbitration.