Mediation as a Precondition for Litigation

Mediation as a Precondition for Litigation

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Mediation; in fact, is not a new dispute resolution method and has been used in many countries such as the Far East, Africa, the United States of America, the United Kingdom, and France for a long time. What is new is the regulation of mediation as a separate profession and procedure. Mediation is defined in Article 2 of the Law on Mediation in Legal Disputes No. 6325 as "a voluntary dispute resolution method carried out by a neutral and independent third party who has received specialized training, bringing the parties together with the aim of conducting discussions and negotiations using systematic techniques, establishing a communication process between them to ensure that they understand each other and produce their own solutions, and who can also propose a solution if the parties are unable to reach a resolution".

Mediation is a process based on the will of the parties and according to Article 3 of Law No. 6325 on Mediation in Civil Disputes, "Parties are free to apply to a mediator, continue the process, conclude it or abandon it." However, the exception to this article is the cases where mediation is regulated as a condition for filing a lawsuit. Although there is no party will regarding the application in cases where mediation is a condition for filing a lawsuit, the decision to continue or not to continue the process and to reach an agreement always belongs to the parties, and therefore, it is not considered to be against the principle of voluntariness.

In cases where mediation is a condition for filing a lawsuit, the plaintiff must attach the original of the final record regarding the failure to reach an agreement or a certified copy approved by the mediator to the lawsuit petition. If it is not attached, the plaintiff is given a one-week definite period, and if the final record is not presented within this definite period, the lawsuit petition is dismissed from the proceedings without being served on the opposing party. However, if the lawsuit is filed without applying to the mediator, the lawsuit is dismissed from the proceedings due to the absence of a condition for filing a lawsuit without any action being taken.

With regard to the submission of the final record, in the decision of the 10th Civil Chamber of the Antalya Regional Court of Justice, dated 11.11.2019, with the file number 2019/2037 E. and 2019/2110 K., it was decided that the dismissal from the proceedings due to the failure to present the final record or a certified copy approved by the mediator within the one-week definite period was appropriate. However, in the decision of the 31st Civil Chamber of the Istanbul Regional Court of Justice, dated 31.05.2019, with the file number 2019/1441 E. and 2019/1299 K., it was stated that "...it is understood that the lawsuit was dismissed from the proceedings due to the failure to submit the final record within the one-week period given to the plaintiff for submitting the original of the mediation record, but considering that the mediation activity is accessible to everyone through the UYAP system, where the documents related to the mediation activity and the final record can be accessed publicly and easily, and the lawsuit was filed through the UYAP system, the evidence of the parties should be collected and the merits of the case should be examined by continuing the litigation, and therefore, the dismissal of the lawsuit from the proceedings due to the failure to present the final record is not appropriate." In the decision of the Antalya Regional Court of Justice Presidents of Civil Chambers dated 05.02.2020, with the file number 2020/1, it was decided by a majority of 7 members to give priority to the decision of the 31st Civil Chamber of the Istanbul Regional Court of Justice dated 31.05.2018, with the file number 2019/1441 E. and 2019/1299 K. and the file was referred to the Supreme Court for the resolution of the dispute. In the decision of the 9th Civil Chamber of the Supreme Court, dated 17.06.2020, with the file number 2020/932 E. and 2020/5773 K., it was discussed whether the judge could access the final record through UYAP, and whether a photocopy of the final record would be sufficient. The reasoning of the decision states that "the obligation to submit the document provided for in Law No. 7036...

The condition of mediation is encountered in some countries such as Germany, Japan, and Italy as examples of mandatory mediation, and in some cases, mediation has been made a mandatory condition in our legal system. The first regulation on this matter was made with Article 3 of the Law on Labor Courts numbered 7036. According to this regulation, "In lawsuits filed for individual or collective labor agreements based on worker or employer receivables and compensations, and for reinstatement demands, the application to the mediator is a mandatory condition." (Although compensation claims arising from work accidents or occupational diseases are suitable for mediation, they are not within the scope of mandatory mediation.) The mediator must conclude the application within three weeks from the date of appointment, and in mandatory cases, this period can be extended by a maximum of one week by the mediator. (Law on Labor Courts Art.3/10) The fee to be paid to the mediator has been determined as "the sum of the compensation to be paid to the worker in case he/she is not employed and the amount to be paid for the period he/she is not employed, and other rights if the parties reach an agreement during the negotiations held for reinstatement demand" with Article 3/13. In Article 3/18 of Law No.7036, it is stated that "The parties can participate in mediation meetings either in person, through their legal representatives or lawyers. The employee authorized in writing by the employer can also represent the employer in the negotiations and sign the final report." It is stated in the article that the employee authorized in writing can participate in the negotiations, since it is stated that the authorization document should only be in writing, whereas according to Article 74 of the Code of Civil Procedure, lawyers must have special authority in their power of attorney to participate in mediation meetings. An attorney without special authorization in his/her power of attorney can only participate in negotiations with the consent of the other party as a consultant of the relevant party. In addition, although it is stated in the article that the authorized employee can represent the employer and sign the final report, there is no clarification on whether he/she can sign the agreement document.

An application was made to the Constitutional Court for the annulment of Article 3/1 of Law No. 7036 on Labor Courts, and the application was unanimously rejected by the Constitutional Court. In the decision, it was stated that "it cannot be said that the obligation to apply to the mediator violates the essence of the right to access to justice, unless it creates an ineffective and fruitless process that makes it impossible or excessively difficult for individuals to seek their rights. Although the obligation to apply to mediation arises as a consequence of being a mandatory condition, this obligation is only limited to applying to mediation, and it is clear that the parties have control over the functioning and outcome of the mediation process. The parties have the right to terminate the process whenever they want, and they also have the choice whether to reach an agreement at the end of the process. If an agreement cannot be reached, the parties can proceed to file a lawsuit, and there is no obstacle for them to use their right to access to justice."

The provision requiring mediation as a condition for filing commercial lawsuits was added to the Turkish Commercial Code numbered 6102 with Article 5/A: "For commercial lawsuits specified in Article 4 of this law and in other laws, it is a requirement to apply to a mediator before filing a lawsuit regarding claims for payment of a sum of money and compensation." The mediator must conclude the application within six weeks from the date of appointment, and in exceptional cases, this period can be extended by the mediator for a maximum of two weeks.

The regulation regarding disputes seen in consumer courts was added with Article 73/A to the Law on Consumer Protection numbered 6502. Although this article makes mediation a prerequisite for disputes seen in consumer courts before filing a lawsuit, exceptions are specified in the law. Namely, the provisions regarding mediation do not apply to disputes that fall within the scope of the consumer arbitration board (the limit for applying to the consumer arbitration board has been raised to 30,000TL), objections to consumer arbitration board decisions, cases specified in Articles 73/6 and 74, and disputes arising from immovable property that are of a consumer nature.

Conclusion

Mediation is actually a solution method that has been practiced for many years, but its regulation as a separate profession and procedure is relatively new. Therefore, although different judicial decisions are encountered in practice, an attempt is made to create a jurisprudential unity in the process. While mediation application is generally optional, in some cases specified in the laws, application to mediation is a prerequisite for filing a lawsuit. Since this obligation is only related to the application and it is up to the parties to continue the process or not and to reach an agreement or not, it is not considered contrary to the freedom of access to justice. In our country, the requirement of mediation for filing a lawsuit has been introduced for many areas, and it is expected that its scope will further expand by adding other areas such as rent disputes.

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Sinem ?iftci

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References

Law on Mediation in Legal Disputes No. 6325

Regulation on Mediation in Legal Disputes

Law on Labor Courts No. 7036

Turkish Commercial Code No. 6102

Law on the Protection of Consumers No. 6502

Code of Civil Procedure No. 6100

Mediator Basic Training Book by the Directorate of Mediation

Constitutional Court Decision dated 11.07.2018, No. 2017/178 E., 2018/82 K.

Antalya Regional Court of Justice, 10th Civil Chamber Decision dated 11.11.2019, No. 2019/2037 E., 2019/2110 K.

Istanbul Regional Court of Justice, 31st Civil Chamber Decision dated 31.05.2018, No. 2019/1441 E., 2019/1299 K.

Supreme Court 9th Civil Chamber Decision dated 17.06.2020, No. 2020/932 E., 2020/5773 K.