MANDATORY MEDIATION
What is Mandatory Mediation?
For certain disputes, it is mandatory to go to a mediator before filing a lawsuit. Mandatory mediation is a precondition for these disputes.
In other words, a lawsuit filed without first going to a mediator will be dismissed due to the absence of this precondition.
Some claims related to commercial and labor cases (such as severance pay, notice pay, overtime wages, salaries, etc.) are included under mandatory mediation.
SİSTEM NASIL İŞLEMEKTEDİR?
The process begins by applying to the mediation center located in courthouses, where a mediator registered in the official mediation registry is appointed.
The appointed mediator invites the parties to a meeting. If one of the parties does not attend, the mediation process does not begin, and the party who applied for mediation fulfills the requirement to file a lawsuit.
The party who refuses to attend the meeting will be ordered to pay the court costs and the opposing party’s attorney fees, even if they win the case.
If the meeting is accepted, the parties are brought together in a neutral environment with the guidance of an expert mediator. During the session, the parties’ demands are discussed, and efforts are made to reach a mutual agreement. The mediator must conclude the mediation process within 3 weeks.
If the parties fail to agree, the first two hours of fees are covered by the Ministry of Justice’s budget. If the parties reach an agreement, the mediation fee, as specified in the mediation fee schedule, is paid by the parties as compensation for the mediator’s work.
Statistics show that with the mandatory mediation system, which has been in effect since January 1, 2018, 90 workers and employers reached an agreement in the first 4 days, while only 6 did not. This early data demonstrates how fast, practical, economical, and peaceful the system can be.
WHICH LAWS ARE COVERED UNDER MANDATORY MEDIATION?
The scope of mandatory mediation covers lawsuits related to claims arising from disputes between employees and employers, including severance pay and reinstatement lawsuits. The regulation makes no distinction between claims based on law, individual employment contracts, or collective bargaining agreements.
As is known, employment relationships and contracts are also regulated by laws other than the Labor Law, as will be mentioned below. The Turkish Code of Obligations contains provisions regulating employment relationships, workers’ rights, claims, and obligations. In fact, it includes provisions not found in the Labor Law, such as workers’ obligations and employers’ responsibilities.
In this context, the obligation to apply to a mediator is a precondition for filing a lawsuit regarding the claims between workers and employers under “Service Contracts” (general service contracts, marketing contracts, and domestic service contracts), which are regulated in the Sixth Chapter of the Second Section of the Turkish Code of Obligations No. 6098. Article 5 of the law includes these types of disputes within the jurisdiction of labor courts.
Prior to this regulation, lawsuits regarding employee claims under the Code of Obligations were heard in general courts. Law No. 7036 stipulates that all types of employee rights, claims, and demands regulated under the Code of Obligations must now be heard in labor courts.
Accordingly, not only claims under the Labor Law but also claims and compensation related to employment disputes under the Turkish Code of Obligations, the Maritime Labor Law, and the Law on the Regulation of Relations Between Press Workers and Employers must first go through mediation, regardless of which law the claim is based on.
Additionally, if the mediation process ends without an agreement, except for certain exceptions arising from these laws, all lawsuits stemming from labor disputes will be filed in labor courts.
WHICH LAWS ARE COVERED UNDER MANDATORY MEDIATION?
The scope of mandatory mediation covers lawsuits related to claims arising from disputes between employees and employers, such as severance pay claims and reinstatement lawsuits. The regulation does not differentiate whether these claims are based on law, individual employment contracts, or collective bargaining agreements.
As is well known, other laws also regulate employment relationships and contracts, as outlined below. In addition to the Labor Law, the Code of Obligations contains provisions that regulate employment relationships, workers’ rights, claims, and obligations. It even includes provisions not covered by the Labor Law, such as worker obligations and employer responsibilities.
In this context, claims between workers and employers that fall under “Service Contracts” (general service contracts, marketing contracts, and domestic service contracts), which are regulated in Chapter Six of Section Two of the Turkish Code of Obligations No. 6098, are also subject to mandatory mediation as a precondition for filing a lawsuit. Article 5 of the law includes such disputes within the jurisdiction of labor courts.
Before this regulation, lawsuits concerning employee claims under the Code of Obligations were heard in general courts. Law No. 7036 now requires that all types of employee rights, claims, and demands regulated under the Code of Obligations be heard in labor courts.
As a result, not only claims under the Labor Law but also all claims and compensation arising from labor disputes under the Turkish Code of Obligations, the Maritime Labor Law, and the Law on the Regulation of Relations Between Press Workers and Employers must first go through mediation, regardless of which law the claims are based on.
Additionally, if the mediation process ends without an agreement (except for certain exceptions arising from these laws), all lawsuits stemming from labor disputes will be filed in labor courts.
DISPUTES INCLUDED IN MANDATORY MEDIATION UNDER RECENT LEGAL AMENDMENTS
Mediation is an “alternative dispute resolution” method widely used in countries with advanced legal systems. Mediation is a method that parties can use to resolve their disputes with the assistance of a neutral third party, either without going to court or through court referral.
Mediation is divided into two types: “mandatory mediation” and “voluntary mediation.” Mandatory mediation has been introduced by lawmakers to both reduce the workload of courts and ensure faster resolution of certain types of disputes. Some disputes are subject to mandatory mediation.
Voluntary mediation, on the other hand, is a method that can be used for the resolution of private law disputes where parties have the freedom to exercise their own discretion, as long as these disputes do not concern public order. For example, mediation for disputes arising from divorce or property rights will not have any legal effect, as such disputes do not fall under the category of matters that individuals can freely dispose of.
MANDATORY MEDIATION IN COMMERCIAL CASES
According to Article 5/a of the Turkish Commercial Code No. 6102, applying to a mediator is a precondition for filing lawsuits regarding all commercial cases mentioned in Article 4 of the Turkish Commercial Code and other commercial cases under special laws that involve claims for payment of a certain amount of money or compensation.
In other words, such cases cannot be directly filed in the commercial court of first instance without first applying to mediation.
MANDATORY MEDIATION IN LABOR LAW
As of January 1, 2018, disputes arising from employee claims such as annual leave pay, overtime pay, wages, and compensations like notice pay and severance pay between employees and employers must be resolved through mandatory mediation (Article 3 of the Labor Courts Law No. 7036).
Employees and employers are required to first apply to a mediator to resolve their legal disputes. Any labor lawsuits filed in labor courts without first going through mediation will be dismissed due to the “absence of a precondition for the lawsuit.”
If the employee and employer agree on a mediator to resolve their labor law-related legal issue, the mediator mutually accepted by both parties will work to resolve the dispute. If the parties cannot agree on a mediator, the “mediation center” at the courthouse will appoint a mediator from its registered list to handle the dispute.
The application areas of mediation in labor law, accepted as a “precondition for filing a lawsuit,” are as follows:
MANDATORY MEDIATION IN REINSTATEMENT LAWSUITS:
Reinstatement lawsuits are a type of labor lawsuit that allow an employee to return to their job if their employment contract has been unlawfully terminated. Before filing a reinstatement lawsuit, the employee must first apply for mediation to resolve the dispute.
An employee whose employment contract has been terminated must apply for mediation within one month from the date of receiving the termination notice, claiming that no valid reason was provided or that the stated reason is not legitimate. This application must be made in accordance with the provisions of the Labor Courts Law.
If the mediation process does not result in an agreement, the employee has two weeks from the date the final mediation report is issued to file a lawsuit in the labor court. Alternatively, if both parties agree, the dispute can be taken to a private arbitrator within the same period instead of the labor court.
If the lawsuit is directly filed in court without first applying to mediation, it will be dismissed on procedural grounds. The decision of dismissal will be officially notified to the parties. Once the dismissal decision becomes final, the employee has two weeks from the official notification of the final decision to apply for mediation (Article 20/1 of the Labor Law No. 4857).
If the parties reach an agreement during the mediation process regarding the employee’s reinstatement, they are required to specify the following:
– The date the employee will return to work,
– The monetary value of wages and other rights,
– The monetary value of compensation if the employee is not reinstated.
If these details are not specified, it will be considered that no agreement was reached, and the final mediation report will be issued accordingly. If the employee does not start working on the agreed date, the termination becomes valid, and the employer will only be liable for the legal consequences of the termination (Article 21/5 of the Labor Law No. 4857).
In cases where a principal employer-subcontractor relationship exists, both employers must participate in the mediation discussions together, and their decisions must align for an agreement to be valid in the reinstatement dispute (Article 3/15 of the Labor Courts Law No. 7036).
MANDATORY MEDIATION IN SEVERANCE PAY DISPUTES:
Severance pay is compensation paid by the employer to the employee in return for the employee’s seniority, provided certain conditions are met. To be eligible for severance pay, the employee must have worked at the same employer’s workplace for at least one year. If an employee is entitled to severance pay but is unable to receive it from their employer, the employee must first apply to a mediator to resolve the dispute.
Mandatory mediation is required before a lawsuit can be filed for severance pay claims. This process allows the parties to attempt to reach an agreement without going to court, making the resolution faster and less costly. If the mediation process does not result in an agreement, the employee can file a lawsuit in the labor court after the mediation report is finalized.
MANDATORY MEDIATION IN NOTICE PAY DISPUTES:
Notice pay is compensation paid to an employee whose employment contract has been unjustly terminated without prior notice. The amount of notice pay varies depending on the employee’s seniority at the workplace. Disputes between the employee and the employer over entitlement to notice pay, its amount, and method of payment must be resolved through the “mandatory mediation” process before a lawsuit can be filed.
This means that before proceeding to court, both parties must attempt to resolve the dispute by applying to a mediator. If the mediation process does not result in an agreement, the case can then be taken to the labor court.
MANDATORY MEDIATION FOR OVERWORK PAY:
Overtime pay is the work of an employee exceeding 45 hours per week in the workplace, within the framework and conditions determined by the labor law. The employer must pay an overtime wage of 50% more than the normal hourly wage for each hour of work exceeding 45 hours per week. Overtime pay is the dispute that most preoccupies the courts in practice. Since overtime wages will be charged, it is necessary to apply to the “compulsory mediation” institution before filing a lawsuit in the labor court.
The official statistical results of the Ministry of Justice in the fields of Commercial Law, Labor Law and Consumer Law for 2019 – 2021 regarding compulsory mediation are as follows.
Gaziantep Courthouse Mediator Center Contact Information
Switchboard OPERATOR CALL CENTER : ( 0342 ) 321 36 36
Gaziantep Palace of Justice Main Service Building : Zeytinli Mah. Turgut Özal Bulv. No:1/1 27500 Gaziantep / TURKEY
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