Mediation

Mediation is an alternative dispute resolution method that aims to resolve private law disputes between the parties without going to court or through agreement while the litigation process is ongoing. The mediator does not make decisions on behalf of the parties; It helps the parties to communicate, clarify their demands and produce joint solutions.

In Istanbul, the mediation process frequently comes to the fore in business, trade, rent, consumer, partnership dissolution and some receivable-compensation disputes. While in some disputes, mediation is entirely up to the preference of the parties, in some cases it is mandatory to consult a mediator before filing a lawsuit.

What is Mediation?

Mediation is a legal process in which the parties try to resolve the dispute with a neutral and independent mediator. In this process, the mediator does not make decisions like a judge, does not impose a solution on the parties, and does not determine the outcome of the dispute.

If the parties agree, a memorandum of agreement is prepared. If an agreement cannot be reached, a lawsuit may be filed by taking the final report or the current litigation process may continue.

Legal Basis of Mediation

Mediation is regulated by the Law on Mediation in Civil Disputes No. 6325. This law determines how the mediation process will be carried out, the duties of the mediator, the confidentiality principle and the legal consequences of the agreement document.

Mediation can only be applied in private law disputes over which the parties can freely dispose. Criminal cases, disputes involving allegations of domestic violence and some issues closely related to public order may not be suitable for mediation.

What are the Types of Mediation?

Mediation is basically divided into two: voluntary mediation and case-condition mediation. Which type will be applied is determined by the nature of the dispute.

What is Case Condition Mediation?

Mediation as a condition of litigation is a process in which it is mandatory to consult a mediator before filing a lawsuit in some disputes. If a lawsuit is filed directly without making this application, the court may reject the case on procedural grounds.

The purpose of litigation mediation is for the parties to evaluate the possibility of agreement before going to court. If an agreement cannot be reached, a lawsuit can be filed with the final mediation report.

What is Optional Mediation?

Voluntary mediation is when the parties try to resolve the dispute in front of a mediator of their own volition, even though it is not required by law. Parties may resort to mediation before filing a lawsuit or while the lawsuit is ongoing.

This method can be especially useful in cases where the parties want to protect their commercial relationship, non-family private law relationship or long-term business connection. The process is flexible and party-oriented.

In Which Disputes Is Mediation Mandatory?

In Turkey, it is mandatory to apply to a mediator before filing a lawsuit in some types of disputes. These areas have expanded over time.

Mediation in Labor Disputes

Mediation is a condition of litigation in receivables, compensation and reinstatement disputes between the employee and the employer. According to Article 3 of the Labor Courts Law No. 7036, a mediator must be consulted before filing a lawsuit for employee or employer receivables, compensation and reinstatement requests.

Severance pay, notice pay, overtime, annual leave pay, salary receivables and reinstatement requests can be evaluated within this scope. However, cases for material and moral damages arising from work accidents and occupational diseases are excluded from this obligation.

Mediation in Commercial Disputes

Mediation in commercial disputes is frequently brought up in cases of money receivables or compensation claims between companies and traders. In accordance with Article 5/A of the Turkish Commercial Code, applying to mediation is a condition of litigation in some commercial cases where the subject is the payment of a certain amount of money.

Invoice receivable, current account, contract price, commercial compensation, cancellation of objection, negative determination and recovery cases can be evaluated within the scope of commercial mediation. In order for the process to be carried out correctly, it should be examined whether the dispute qualifies as a commercial case.

Mediation in Rental Disputes

In most cases, it is mandatory to apply to a mediator before filing a lawsuit in disputes arising from the rental relationship. This regulation has been implemented as of September 1, 2023.

Issues such as rental fee, rent determination, rent adaptation, eviction, deposit, damage to the rented property and rent receivable may be subject to the mediation process. However, according to the Enforcement and Bankruptcy Law No. 2004, the provisions of eviction through execution without judgment are excluded from this scope.

Mediation in Consumer Disputes

In many disputes heard in consumer courts, it is necessary to consult a mediator before filing a lawsuit. Defective goods, defective services, subscriptions, distance sales, credit agreements and service agreements can be evaluated within this scope.

However, disputes and some special issues that fall within the jurisdiction of the consumer arbitration committee may be outside the scope of mediation. For this reason, the remedy in consumer disputes should be determined according to the amount and nature of the file.

How Does the Mediation Process Begin?

For case-condition mediation, the application is made to the authorized mediation office. After the application, a mediator is appointed from the system and the mediator contacts the parties and initiates the meeting process.

In voluntary mediation, the parties can choose the mediator together. The process can be carried out more flexibly with the agreement of the parties.

Where to Apply for Mediation?

Application for litigation conditional mediation is generally made to the mediation office in the courthouse where the other party resides or where the work is done. Jurisdiction may vary depending on the type of dispute.

Mediation applications in Istanbul can be made through mediation offices in Istanbul, Istanbul Anadolu, Bakırköy or other authorized courthouses, depending on the parties to the dispute and location.

Is it mandatory to attend the mediation meeting?

In mediation, it is important for the parties to attend the first meeting. A party who does not attend the first meeting without a valid excuse may face negative consequences in terms of litigation expenses and attorney fees during the litigation process.

The parties may attend the meeting in person or may be represented through their lawyers. For companies, the authorized representative must attend the meeting.

Is a Lawyer Compulsory in Mediation?

Representation by a lawyer is not mandatory in mediation. However, it may be useful to get legal support to avoid loss of rights in the process.

Especially in business, trade, lease and company disputes, the agreement text should be carefully examined before signing as it will have legal consequences. Incomplete or unclear agreements may cause new disputes in the future.

What happens if an agreement is reached in mediation?

If the parties agree, a mediation agreement report is prepared. In this minute, the payment, delivery, release, waiver, installment or other obligations agreed upon by the parties are clearly written.

The agreement document may become an enforceable document when the necessary conditions are met. In this case, if the parties do not fulfill the provisions of the agreement, enforcement action may be taken.

What Happens If Agreement Cannot Be Reached in Mediation?

If the parties cannot agree, the mediator prepares a final report. In case of mediation, this final report is an important document that must be presented to the court when filing a lawsuit.

If a lawsuit is filed without a final report, the court may reject the case on procedural grounds. For this reason, the mediation process must be completed properly before filing a lawsuit.

Why is the Mediation Agreement Document Important?

The mediation agreement document is a written document showing the issues agreed upon by the parties. This document may include payment schedule, debt amount, release date, labor receivable, commercial debt or other obligations.

The document must be prepared in a way that is clear, applicable and accurately reflects the will of the parties. Ambiguous statements may cause problems later in the enforcement or litigation phase.

Privacy Policy in Mediation

Discussions held during the mediation process and offers made by the parties are confidential. The parties may not be able to use some statements made during mediation meetings as evidence later in the litigation process.

The principle of confidentiality allows the parties to negotiate more easily. However, the scope and exceptions of confidentiality should be evaluated according to the nature of the concrete incident.

Durations in Mediation

The general period for litigation condition mediation is three weeks from the date the mediator is appointed. In cases of necessity, this period can be extended by a maximum of one week.

In some cases, different periods may apply in commercial disputes. Therefore, the duration of mediation should be followed according to the type of dispute.

Who Pays the Mediation Fee?

The mediation fee may vary depending on whether the process results in agreement or disagreement. In case of agreement, the fee is generally paid equally, unless otherwise agreed by the parties.

If an agreement is not reached in mediation, the fee may be covered from the Ministry of Justice budget in certain cases; However, it may later be considered as litigation expenses at the end of the case. The issue of wages should be examined separately according to the outcome of each file.

How to Represent Companies in Mediation?

Companies can attend the mediation meeting through their authorized representatives or lawyers. The authority to represent must be clear and valid.

If an agreement will be made on behalf of the company, it is important that the representative is authorized in this regard. An agreement signed by an unauthorized person may later create a dispute within the company or with the other party.

In Which Disputes Is Mediation Not Appropriate?

Mediation cannot be applied on matters over which the parties cannot freely dispose. Additionally, disputes involving allegations of domestic violence are not suitable for mediation.

Crimes subject to criminal proceedings, some issues concerning public order and situations in which the parties do not have the authority to agree may not be evaluated within the scope of mediation. Therefore, before applying, it should be determined whether the dispute is suitable for mediation.

Difference Between Mediation and Litigation

In mediation, the solution is based on the will of the parties. In court, the judge decides the dispute.

Things to Consider in Mediation

During the mediation process, demands should be clearly defined, documents should be prepared and possible agreement terms should be evaluated in advance. Unprepared participation may result in loss of rights or incomplete agreement.

In particular, issues such as payment plan, interest, waiver, acquittal, release date, delivery obligation and penalty clause should be clearly written. Before signing the agreement text, its legal consequences should be carefully examined.

Mediation Process in Istanbul

Mediation applications in Istanbul can be made to mediation offices in different courthouses depending on the type of dispute and the location of the parties. Istanbul, Istanbul Anatolia, Bakırköy and other jurisdictions are frequently brought up in practice.

Due to the intense litigation and commercial transaction traffic in Istanbul, mediation may offer the parties a faster solution. However, for the process to be effective, the application, meeting and agreement text must be prepared carefully.

Legal Support from Attorney Mehmet Emin Kurşun

Although the mediation process may seem like a simple meeting, the signed documents can have serious legal consequences for the parties. For this reason, it is important to determine the demands correctly, prepare the documents and prepare the agreement minutes clearly.

Attorney Mehmet Emin Kurşun provides legal support to the mediation process in business, trade, rent, consumer, company receivables, compensation and private law disputes in Istanbul.

Things to Know Before Starting the Legal Process

Before applying for mediation, the type of dispute, whether there is a lawsuit requirement, the amount to be requested, the documents and the situation of the other party should be evaluated. Incorrect application or incomplete preparation may cause the process to take longer.

It is important for people who will participate in the mediation process in Istanbul to receive legal support, especially before signing the agreement text. A properly prepared mediation process can provide a solution without litigation and reduce the risk of loss of rights.

Frequently Asked Questions

What is mediation?

Mediation is an alternative dispute resolution method in which the parties try to resolve private law disputes through agreement with a neutral mediator.

Does the mediator decide?

No. A mediator does not make decisions like a judge. It helps the parties to communicate and produce common solutions.

What is litigation condition mediation?

Mediation as a condition of litigation is a process in which it is mandatory to consult a mediator before filing a lawsuit in some disputes.

In which cases is mediation mandatory?

Mediation may be mandatory in a significant part of employee-employer receivables, reinstatement, some commercial receivables and compensation cases, consumer disputes and rental disputes.

What happens if an agreement is reached in mediation?

If the parties agree, a memorandum of agreement is prepared. This document may become an enforceable document if the necessary conditions are met.

If there is no agreement in mediation, will a lawsuit be filed?

Yes. If there is no agreement in mediation as a condition for litigation, the final report is taken and a lawsuit can be filed with this report.

How long does mediation take?

The general duration of litigation in mediation is three weeks. In cases of necessity, this period can be extended by a maximum of one week. Different periods may apply in some disputes.

Is a lawyer mandatory in mediation?

A lawyer is not required. However, since the agreement text has legal consequences, getting legal support can reduce the risk of loss of rights.

Are mediation meetings confidential?

Yes. Mediation meetings are, as a rule, confidential. The parties' statements during the process may not be used as evidence later, subject to certain limitations.

Where to apply for mediation in Istanbul?

The application is made to the relevant mediation office in Istanbul, depending on the type of dispute and jurisdiction rules. The competent office is determined according to the address of the parties and the nature of the dispute.