Mediation, as one of the alternative dispute resolution methods, has been introduced into the Turkish Law system with the Law on Mediation in Civil Disputes (“Law”) (Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu).
Pursuant to Article 2 of the Law, parties of a dispute may voluntarily choose mediation for legal disputes arising from private law, at their own will, and have the opportunity to resolve such disputes before a neutral and independent third person (mediator) who is qualified to mediate.
The Draft Law on Labor Courts ("Draft Law") (İş Mahkemeleri Kanunu Tasarısı), which mandates the usage of the mediation for resolving the disputes arising from labor law, was accepted by the Turkish Great National Assembly Justice Commission (“TGNA”) on June 20, 2017. According to Article 3 of the Draft Law, it is mandatory to apply for mediation before filing a lawsuit on the grounds of debt claims arising from the law, individual or collective labor contracts or reemployment claims.
By virtue of the Draft Law, parties to a dispute are required to apply for a settlement through mandatory mediation before filing any lawsuit for payment of severance and/or notice, overtime pay and annual leave charges. If a lawsuit is filed without applying to the mediation, the court must dismiss the lawsuit on procedural grounds in accordance with Article 115 of the Law on Civil Procedure (Hukuk Muhakemeleri Kanunu) due to absence of fullfilling a pre-condition.
Application to mediation is not a pre-condition in disputes relating to material or immaterial indemnity claims arising from a disability due to work accident and indemnity for deprivation arising from death of an employee.
According to Article 3 of the Draft Law, the application can be made either to the mediation office at the place of residence of the opposing party, or place of employment, or to the competent Civil Court of Peace, where the mediation office does not exist.
Under the Draft Law, the Department of Mediation is required to list the mediators, who are willing to mediate, among the registered mediators, and by indicating their expertise, according to the judicial commissions of the first instance courts they will work at, and notify their names to the committee presidencies. Presidents of the commissions shall send those lists to the mediation offices of their jurisdictional circles and to the competent Civil Court of Peace in the absence of mediation offices.
In case of an application to mediation, the parties are required to select the mediators from among the list of mediators, which was sent by the relevant committee presidencies and registered at the register of mediators. If the parties cannot agree on a mediator, the assignment is made by the mediation office ex officio.
The mediator informs the parties of the appointment and invites them to the first meeting. The mediator is obliged to conclude on the applications, within three weeks from the date on which it was filed. This period may be extended by the mediator for a maximum of one week in extreme cases. At the end of the mediation negotiations, the mediator prepares the final report and sends a copy of the same to the mediation office. Starting from the application to the mediation office, until the preparation of the final report, the lapse of time period would cease.
If the parties settle in the presence of the mediator, the mediation fee is required to be paid equally by the parties pursuant to the second part of the Mediation Minimum Wage Schedule ("Schedule) , unless the parties agree otherwise. In any case, the fee may not be less than the two-hour fee set out in the first part of the Schedule.
In the event that the parties could not settle in the presence of the mediaor, the first two hours of the mediation negotiations will be born by the Undersecreteriat of Treasury, and the part exceeding the two hours fee amount will equally be paid by the parties. Mediation fees paid by Undersecreteriat of Treasury and the parties shall be deducted from the costs of the following court proceedings.
If a party is not present in the mediation proceedings without a valid excuse, this shall be indicated in the last report and even if the case is decided in favor of the absent party, it will be obliged to pay the full amount of the following court proceedings.
Mediation for Reemployment
The relevant clauses of Article 20 of the Labour Law which have been amended by Article 13 of the Draft Law, the employee, whose employment contract has been terminated, shall apply for mediation to claim for reemployment within one month following the termination notice, if the reason for termination is not stated in the termination or the reasons for termination are not valid. If settlement cannot be reached in the presence of the mediator, then the emploee may file a lawsuit before the labor court within two weeks following the date on which the final report was issued. If a court case is filed without applying to mediation, the court shall dismiss the case on procedural grounds and an application for mediation can be made within two weeks of the service of the court decision.
If the parties agree on reemployment before the mediator, the date for commencement of the work shall also be determined. In case the employee does not start to work on the agreed date, the termination shall be valid. In the event that the date of commencement is not determined, the employee shall be reemployed within a month following the date of the final report. If the employer fails to start the employment, he/she shall be obliged to pay compensation in the amount of at least four months and at most eight months' salary. Furthermore, a compensation of up to a maximum of four months may be determined for the period in which the employee had not been employed.
Following the approval of the Draft Law by the TGNA, it will become a law. It may take a considerable time to resolve disputes through the labor courts, which may be time-consuming for both parties. By the enforcement of mandatory mediation, it is aimed to accelerate the process of reaching a settlement in labor disputes. In this regard, it is believed that the mandatory mediation will be beneficial for both parties of a dispute and the Turkish legal system. Besides, by way of mediation, the parties will be able to find appropriate solutions in their best interests as they produce the solution themselves.
I'm busy working on my blog posts. Watch this space!