Alternative Dispute Resolution Methods (Mediation)

1. Introduction

Alternative dispute resolution methods have been developed in modern legal systems to alleviate the burden on the judiciary and enable parties to resolve their disputes more quickly, effectively, and conciliatorily. The most common of these methods is mediation , which was introduced into the Turkish legal system in 2013 with the Law on Mediation in Legal Disputes (Law No. 6325) .

Mediation is not an alternative to judicial resolution, but rather a mechanism that complements it. However, in recent years, there have been serious debates, both in legal doctrine and practice, particularly regarding the enforceability of mediation agreements and the scope of the dispute

This article will examine the legal nature , enforceability , and limitation of disputes related to mediation agreements in light of Supreme Court decisions and relevant legislation.

2. The Legal Nature of the Mediation Institution

2.1. Legal Basis

Mediation Law No. 6325 on Mediation in International Relations.
According to Article 2 of the law, mediation is:

"It is the activity of a neutral third party who brings the parties together by applying systematic techniques, facilitating their communication and finding solutions.".

This definition reveals that mediation is based on the principle of voluntariness and consent

2.2. Mandatory and Voluntary Mediation

In Turkish law, mediation is implemented in two ways:

Voluntary Mediation: This is a process initiated by the parties themselves.
Mandatory Mediation (Required Before Filing a Lawsuit): mediation is mandatory before filing a lawsuit, particularly in labor, commercial, consumer, and rental disputes .

In its decision numbered 2022/15341 E., 2023/3156 K., the 9th Civil Chamber of the Supreme Court of Appeals,

"If a mandatory mediation application has not been made, the case must be dismissed on procedural grounds due to a lack of a prerequisite for filing a lawsuit.
"

3. Legal Nature of the Mediation Agreement

3.1. Distinction Between Minutes and Contracts

According to Article 18 of the HUAK (Law on Mediation in International Relations), if an agreement is reached as a result of the mediation process, an agreement document is drawn up. This document is signed by the parties and the mediator and constitutes a kind of settlement agreement

However, unlike an ordinary private law contract, a mediation agreement enforceable .

3.2. Enforceability Clause

Article 18/3 of the HUAK (Law on the Protection of Human Rights):

"If an enforceability clause is added to the agreement document, it shall be considered a document with the force of a judgment."

Accordingly, there are two types of performance ability:

In out-of-court mediation: An enforceability certificate must be obtained from the civil court.
In mediation during a lawsuit: There is no need to obtain a commentary; the minutes are considered a direct judgment.

Supreme Court 11th Civil Chamber, Case No. 2021/3512, Decision No. 2022/1426.

"A mediation agreement bearing an enforceability clause may be subject to enforcement proceedings based on a court judgment; the parties cannot file a separate lawsuit."

This decision confirms that mediation records produce an effect close to that of a final judgment

4. Enforceability of Mediation Minutes

4.1. Terms and Conditions

For a mediation agreement to be enforceable, the following conditions must be met:

The parties have reached an agreement,
It must be signed by the mediator
A request for enforceability from one of the parties,
The formal and intentional review conducted by the civil court of peace ,
Issuance of an enforceability endorsement.

The court reviews only the form of the case, not the substance . This preserves the principles of "speed and confidentiality" in mediation.

4.2. The Court's Supervisory Authority

The civil court reviews the parties' intentions and determines whether the agreement is contrary to public order, general morality, and mandatory provisions

Supreme Court 15th Civil Chamber, Case No. 2020/2183, Decision No. 2021/1919.

"The issuance of an enforceability clause does not mean that the court is interfering with the substance of the agreement; it only involves a formal review."

This provision preserves the principle of freedom of will inherent in the mediation agreement

5. Limits of the Scope of the Dispute

5.1. Limitations of Mediation

According to Article 1/2 of the Law on Mediation, mediation can only be applied in "private law disputes over which the parties can freely dispose."
This means that rights relating to public order, matters concerning criminal proceedings, and certain aspects of family law (e.g., custody) are outside the scope of mediation.

Supreme Court of Appeals, 2nd Civil Chamber, Case No. 2023/1482, Decision No. 2023/4117:

"In divorce cases, issues of custody and relationship are not suitable for mediation; they relate to public order."

5.2. Limitations on Mandatory Mediation as a Requirement for Filing a Lawsuit

Mandatory mediation only covers disputes involving monetary claims . In labor law, this includes severance pay, notice pay, and wage claims; in commercial disputes, it covers contractual obligations.

However, recourse claims based on insurance compensationare not suitable for mediation.

Supreme Court 11th Civil Chamber, Case No. 2022/13214, Decision No. 2023/2451:

"Insurance subrogation claims are not included within the scope of mediation because the dispute relates to third-party liability."

6. Scope and Limitations of the Mediation Agreement

6.1. Certainty Requirement in Agreement Protocols

For a mediation agreement to be valid, its subject matter and scope must be clearly defined.
Agreements containing vague, ambiguous, or general statements are not enforceable.

Supreme Court 9th Civil Chamber, Case No. 2021/2341, Decision No. 2022/1759.

"If the mediation report does not clearly state which debts have been paid, the agreement constitutes a general settlement and cannot be enforced."

6.2. Limits of Party Will

The parties may only reach an agreement that covers their own rights of disposal.
Provisions affecting the rights of third parties are invalid.
Furthermore, the prohibition against employee waiver in labor law (Labor Law Article 21/last paragraph)also applies to mediation agreements.

The Supreme Court is consistent on this issue:

"A worker cannot waive rights that they are legally prohibited from relinquishing through mediation." (Supreme Court of Appeals, 22nd Civil Chamber, Decision No. 2022/1542)

7. Enforceability Clause and Final Judgment Effect

Adding an enforceability clause to a mediation agreement gives the document the status of an enforceable court judgment . In this case, a new lawsuit can no longer be filed on the same matter; the agreement has the effect of a final judgment .

Supreme Court 19th Civil Chamber, Case No. 2021/4587, Decision No. 2022/2310:

"A mediation agreement that has been granted enforceability has the force of a final judgment; the parties cannot file a new lawsuit on the same matter."

However, the agreement may be subject to annulment proceedings on the grounds of vitiated consent (e.g., fraud, threat, error).
In this case, general provisions (Turkish Code of Obligations, Articles 30-39) apply.

8. The Issue of Public Order and Oversight in Mediation

The mediation system is based on the principle of party autonomy.
However, in some cases, the direct enforcement of agreements that are contrary to public order a violation of rights .

Supreme Court 12th Civil Chamber, Case No. 2023/1582, Decision No. 2023/4327:

"A mediation agreement that is clearly contrary to public order cannot be enforced, even if an enforceability clause has been issued."

Therefore, courts must conduct not only formal review but also public order review during the annotation stage

9. Cancellation of Mediation Agreements and Judicial Review

9.1. Reasons for Cancellation

Mediation records may be cancelled in the following cases:

Violation of will (deception, threat, error),
Exceeding the authority to represent,
Violation of public order,
Legally impossible performance,
Lack of certainty.

In these cases, the annulment lawsuit is filed in the general courts.
The decision of the 13th Civil Chamber of the Supreme Court of Appeals, case number 2020/4561 E., 2021/2783 K., is in this direction.

9.2. Appeal Against the Commentary Decision

An appeal is possible against the enforceability clause decision of the civil court.
However, the appeal review to formal review .
The regional court of appeal does not examine the merits of the agreement.

10. The Effectiveness and Criticisms of the Mediation System

10.1. Advantages

It provides a fast and low-cost solution.
It protects the relationship between the parties.
It reduces the workload of the judiciary.

10.2. Criticisms

In some cases, the weaker party (e.g., the worker) may reach an agreement under duress
In practice, some mediators act like "arbitrators,"
Lack of oversight of agreements with enforceability clauses,
The scope of the dispute is left ambiguous.

Therefore, qualified mediator training, ethical oversight , and transparency are necessary for the system to improve.

11. Reforms and Recommendations

The scope of enforceability review should be expanded:
Civil courts should be explicitly obligated to conduct public order oversight.
The Certainty Requirement Should Be Strengthened:
It should be mandatory for mediation records to contain clear, specific, and enforceable provisions.
Protection Mechanism in Labor Law:
It could be considered to submit the rights waived by the worker to the supervision of the Ministry of Family, Labor and Social Security.
Speedy Procedure for Annulment Cases:
A special and expedited judicial procedure should be introduced for the annulment of mediation agreements.

12. Conclusion and Evaluation

Mediation is a significant revolution in dispute resolution within the modern legal system. However, the reliability of this system is directly related to the enforceability of mediation agreements and the clarity of the scope of the dispute

In conclusion:

Mediation records, with the addition of an enforceability clause, acquire the status of a judgment and have the effect of a final ruling.

However, the agreement must comply with public order, mandatory provisions, and the principle of specific scope.

The court must exercise not only formal oversight but also public order oversight.

If the scope of the dispute is not clearly defined, it is not enforceable.

In labor and consumer law, protecting the weaker party is essential for the legitimacy of the mediation system.

In this context, mediation should be seen not only as a method of reconciliation but also an alternative way to access justice ,
however, without compromising legal certainty.

Right to a Fair Trial, alternative dispute resolution, mediation, mediation agreement, mediation report, legally binding, enforceability clause, enforceability, labor dispute mediation, commercial mediation, scope of the dispute, willingness to compromise, Supreme Court mediation decisions, mandatory mediation as a prerequisite for litigation.

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