Mandatory Mediation

What is Mandatory Mediation? Mediation as a Condition for Litigation and the Consequences of Not Seeking Mediation

1. Introduction: Why “Mandatory Mediation”?

In Turkey, the heavy workload of courts, the fact that trials can last for years, and the increasing costs of litigation each year have led the state to turn to alternative dispute resolution methods. Mediation is one of the most prominent of these methods.

Mediation, which was first introduced into our system with the Law No. 6325 on Mediation in Legal Disputes , was initially entirely voluntary ; however, over time it became a "prerequisite for litigation" for some private law disputes . In other words, in certain cases, it is now mandatory to apply to a mediator before going to court.

2. What is Mediation?

Mediation is an alternative dispute resolution method in which parties attempt to resolve their private law dispute through negotiation and with the assistance of a neutral and independent third party (mediator) .

The basic characteristics of mediation can be briefly summarized as follows:

The principle of voluntariness/voluntariness (even in mandatory mediation, the agreement is voluntary),
Impartial and independent mediator,
Confidentiality (what is said during the process cannot normally be used as evidence in court),
It must be applicable to private law disputes over which the parties can freely dispose
Disputes involving allegations of domestic violence are not suitable.

In this context, mediation is divided into two categories:

Voluntary mediation
Mandatory (prerequisite for litigation) mediation

3. The Distinction Between Voluntary and Compulsory Mediation

3.1. Voluntary Mediation

This is a type of mediation that parties initiate entirely voluntarily, without any legal obligation. It can be done before a lawsuit is filed or even while a lawsuit is ongoing.

The parties may resort to voluntary mediation for any private law dispute they are able to resolve (e.g., commercial receivables, debts, rent, compensation, trademarks, certain family law issues, etc.).

3.2. Mandatory (Required) Mediation

In some types of disputes, it is legally mandatory to apply to a mediator before filing a lawsuit. In these disputes, applying to mediation is a prerequisite for filing a lawsuit under the Code of Civil Procedure.

If a lawsuit is filed directly without first resorting to mediation,
Or if the mediation process is not completed properly,

The court dismisses the case on procedural grounds due to the lack of a prerequisite for filing a lawsuit.

This system is regulated in the laws, particularly "requesting mediation before filing a lawsuit is a prerequisite for the lawsuit" (for example, Article 3 of the Labor Courts Law No. 7036, Article 5/A of the Turkish Commercial Code, Article 73/A of the Turkish Consumer Protection Law, Article 18/B of the Law on Mediation).

4. What Does "Condition for Filing a Lawsuit" Mean? The Legal Nature of Mandatory Mediation

A procedural requirementthat is essential for a case to be examined on its merits; its absence necessitates the court dismissing the case on procedural grounds (Code of Civil Procedure, Articles 114-115).

Regarding mediation specifically:

the relevant law stipulates mandatory mediation as a prerequisite for filing a lawsuit,
The plaintiff must apply for mediation , and the process must be concluded in accordance with proper procedure .
The original or a certified copy of the **“final report”** prepared at the end of the mediation process must be attached to the lawsuit petition.

Article 18/A of the Law on Mandatory Mediation is the framework provision for mandatory mediation as a prerequisite for litigation; reference is also made to mandatory mediation regulations in labor, commercial, consumer, and real estate disputes through this article.

5. Main Cases Where Mandatory Mediation is Applied

5.1. Mandatory Mediation in Labor Disputes

Article 3 of the Labor Courts Law No. 7036 :

Lawsuits for employee or employer claims and compensation based on law, individual or collective labor agreements,
For reinstatement lawsuits , applying to a mediator is mandatory before filing a lawsuit .

This scope includes, for example, the following requirements:

Severance pay, notice pay, compensation for unfair dismissal,
Overtime pay, annual leave pay, weekend pay, national holiday pay,
Wage receivables, bonuses, incentives, etc.

Claims for material and moral damages arising from work accidents or occupational diseases, as well as related determination, objection, and recourse lawsuits, are not subject to mandatory mediation.

Mediation is possible for these cases, but it is not a prerequisite for filing a lawsuit.

5.2. Mandatory Mediation in Commercial Disputes

Article 5/A of the Turkish Commercial Code introduced mandatory mediation for a certain type of commercial dispute. Accordingly:

Disputes that are considered commercial lawsuits under Article 4 of the Turkish Commercial Code and other laws ,
The subject matter is a sum of money owed or compensation
receivables, compensation, annulment of objections, negative declaratory judgments , and restitution

Applying to a mediator before filing a lawsuit is a prerequisite for the lawsuit.

5.3. Mandatory Mediation in Consumer Disputes

Article 73/A of Law No. 6502 on Consumer Protection , mediation has been accepted as a prerequisite for litigation in disputes heard in consumer courts.

In summary:

In most consumer cases filed in consumer court ,
It is mandatory to apply to a mediator before filing a lawsuit.

However, there are some exceptions :

Disputes falling within the jurisdiction of the consumer arbitration board,
Appeals against arbitration panel decisions,
Lawsuits of a "general nature" filed by public institutions and consumer organizations within the scope of Article 73/6 of the Consumer Protection Law ,
Lawsuits regarding the recall of defective batches of goods, and the cessation of production or sale , within the scope of Article 74 of the Turkish Consumer Protection Law ,
Consumer transaction disputes arising from the ownership of immovable property,

It is outside the scope of mandatory mediation.

5.4. Mandatory Mediation in Rent, Partition, Condominium, Neighborhood and Real Estate Cases

With Article 18/B added to the HUAK (Law on Mediation in Disputes ) by the 7th Judicial Package No. 7445 and related amendments, mandatory mediation has been accepted as a prerequisite for litigation for the following disputes as of September 1, 2023 :

Disputes arising from lease agreements
(excluding provisions regarding eviction through summary execution proceedings according to the Enforcement and Bankruptcy Law No. 2004),
Lawsuits concerning the division of movable and immovable property and the dissolution of partnerships,
Disputes arising from the Condominium Law,
Disputes arising from neighborly rights,
Disputes relating to the transfer of immovable property or the establishment of limited real rights over immovable property,
Certain disputes arising from agricultural production contracts (within the scope of the relevant regulation).

For example:

Apartment or complex maintenance fees, use of common areas, violations of the management plan,
Dissolution of joint ownership (izale-i şuyu), inheritance distribution,
Lawsuits arising from noise, smoke, and odors stemming from neighborly relations,
Requests for cancellation and registration of title deeds, etc., based on a sales promise agreement.

Now, cases must be taken to a mediator before a lawsuit is filed.

6. Cases Outside the Scope of Mandatory Mediation and the Main Exceptions

Mandatory mediation all private law disputes . Important exceptions include:

Workplace accident and occupational disease compensation lawsuits
- Article 3/3 of the Labor Courts Law explicitly excludes these cases from mandatory mediation.
Some consumer lawsuits
- The disputes within the scope of the arbitration board listed above, appeals against arbitration board decisions, lawsuits under Articles 73/6 and 74 of the Consumer Protection Law, and consumer transactions arising from the ownership of immovable property are covered by this law.
Disputes involving allegations of domestic violence
- According to Article 1/2 of the HUAK (Turkish Code of Civil Procedure), disputes involving domestic violence are not suitable for mediation.
Some non-contentious judicial cases involving public order
- For example, disputes such as guardianship, population registry correction, and certain personal status cases are already outside the scope of the mediation system.

7. Mandatory Mediation Application Process and Deadlines

7.1. Where and How to Apply?

In mandatory mediation, applications are usually made through:

Defendant's place of residence or
The mediation process is carried out at the mediation office located in the place specified in the special laws according to the subject of the dispute .

In areas where there is no mediation office the clerk's office of the civil courtacts as a mediation office.

In person at the mediation office in the courthouse ,
Alternatively, it can be done electronically via e-Government (which is frequently used in practice)

7.2. Appointment and Invitation of the Mediator

After the application, a mediator is assigned through the system.
The mediator invites the parties to a meeting using appropriate methods (telephone, email, UETS, mail, etc.) and initiates the process.

The parties began the negotiations;

Personally,
Legal representatives,
Alternatively, they can participate through their lawyers. Employers can also be represented by employees whom they have authorized in writing.

Time limits vary depending on the type of dispute:

General rule (HUAK Article 18/A-9): The mediator shall conclude the process within 3 weeks from the date of their appointment ; this period may be extended by 1 week in exceptional circumstances (maximum total of 4 weeks).
Labor cases (Article 3/10 of Law No. 7036): The 3+1 week maximum system also applies to labor disputes.
Commercial disputes (Turkish Commercial Code Article 5/A-2):
In monetary claims/compensation cases of a commercial nature, the mediator within 6 weeks ; in exceptional circumstances, this can be extended by a maximum of 2 weeks (6+2 weeks).

Statute of limitations and forfeiture periods:

According to Article 18/A of the HUAK (Law on Mediation in Turkey), the statute of limitations is suspended and the forfeiture period does not run during the period from the date of application to the mediation office until the date the final report is drawn up ; when the process is completed, the periods continue to run from where they left off.

Therefore, timely is crucial, especially in cases involving reinstatement to employment where the statute of limitations is short, as well as in some consumer and commercial disputes.

8. Meeting, Agreement, and Disagreement Scenarios in Mandatory Mediation

8.1. Obligation to Attend the Meeting and Consequences of Non-Attendance

In mandatory mediation as a prerequisite for filing a lawsuit , while the parties must apply , they cannot be forced to reach an agreement . However:

one of the parties fails to attend the first meeting without a valid excuse , and the process is therefore terminated,
Even if this party is partially or fully successful in a subsequent lawsuit , they may still be held liable for all court costs and awarded only half of the legal fees that would be awarded in their favor.

This sanction will have serious financial consequences for the party that does not take mandatory mediation seriously.

8.2. In Case of Agreement

If the parties reach an agreement during the mediation process:

The mediator prepares an "agreement document" containing the agreed-upon points ; the parties and their lawyers, if any, sign it.
If signed jointly by the parties and their lawyers, this document a judgment without requiring an enforceability clause ; it can be directly subject to enforcement proceedings.
Fees and expenses are, as a rule, borne equally by the parties according to the Mediation Minimum Fee Tariff; since no lawsuit is filed litigation costs, fees, and lengthy processes are largely eliminated.

Therefore, if there is a reasonable basis for compromise a mediation agreementis often more advantageous for the parties than a court decision, both economically and in terms of time.

8.3. If an Agreement Cannot Be Reached

If the parties cannot reach an agreement, if no meeting can be held, or if only one party attends, the mediator terminates the mediation process and prepares a "final report"
The plaintiff must attach the original or a certified copy of this final report to the lawsuit petition

9. Consequences of Failing to Apply for or Properly Complete Mandatory Mediation

This is the point where rights are most often lost in practice. In short, incorrect or incomplete mediationcan lead to the loss of the case from the outset.

9.1. Filing a Lawsuit Without First Applying for Mediation

According to Article 18/A of the Law on Mediation, when a lawsuit is filed directly in a dispute subject to mandatory mediation without first applying to a mediator :

The court dismisses the case on procedural grounds, without addressing the merits, due to the lack of a prerequisite for the lawsuit
No additional time is given to the plaintiff when this rejection decision is made ; the deficiency is of a nature that cannot be remedied later.

In Supreme Court precedents, mandatory mediation is generally considered an "unfulfillable procedural requirement" ; after this stage, a new mediation process must be initiated, and a new lawsuit must be filed

This also;

both a waste of time,
It also means that court fees and expenses will be wasted.

9.2. Failure to Attach the Final Report to the Petition

In some cases mediation has taken place; however, the plaintiff has forgotten to attach the final report to their petition. In this case, Article 18/A-2 of the Law on Mediation applies.

The court gives the plaintiff a strict one-week deadline and warns that failure to submit the final report within this period will result in the case being dismissed on procedural grounds.
If the plaintiff fails to submit the final report within this period, the case will be dismissed on procedural grounds without even being served to the opposing party.

Therefore, the final reportmust be included in the case file when a lawsuit is filed.

9.3. Risks Regarding Statute of Limitations and Forfeiture Periods

Statute of limitations and forfeiture periods are suspended; however, they resume from where they left off when the process ends. If a party

There is a delay in filing a lawsuit after the final mediation report is received .
Or if they miss the deadlines when trying to reapply for mediation after the case has been dismissed on procedural grounds,

For example, they may completely lose their claim due to the statute of limitations or forfeiture period

Therefore, the time limit for filing a lawsuit after mediation (especially reinstatement ) must be carefully monitored.

9.4. The Impact of Failure to Attend the First Hearing on Litigation Costs

As stated above, in mandatory mediation, if a party fails to attend the first meeting without a valid excuse, the following applies when a lawsuit is subsequently filed:

They may be held responsible for all of the legal costs paid by the opposing party .
He is entitled to only half of the attorney's fees awarded in his favor .

This sanction a significant financial loss .

9.5. Transitional Provisions Regarding Old (Pending) Cases

With the addition of Article 18/B and Temporary Article 3 to the HUAK ( Law on Mediation in Turkish Property Rights), it has been explicitly stated that the mandatory mediation requirement for disputes such as rent, dissolution of partnerships, and condominium ownership, particularly those initiated before September 1, 2023 and still pending, will not apply to ongoing cases .

Therefore, even if mandatory mediation is later introduced for cases already pending in court as of this date, these cases will not be dismissed on procedural grounds; they will continue to be heard as usual.

10. Common Mistakes in Practice and Practical Suggestions

Thinking you went to mandatory mediation for the wrong type of case

Whether a dispute truly falls within the scope of mandatory mediation may not always be clear (especially in complex commercial-consumer or employment-compensation cases). Misjudgment can lead to unnecessary mediation costs or the risk of rejection due to a lack of a prerequisite for litigation.

Submitting the mediation application in the wrong place (error of jurisdiction)

Errors regarding jurisdiction can cause problems in later stages of the case. In practice, the jurisdictional provisions of the Code of Civil Procedure and the precedents of the Supreme Court should be carefully followed.

Incomplete or inaccurate reporting of requests

Whether certain claims not raised during mediation can later be brought to court is a matter of debate in practice. Therefore, all claims, interest commencement dates, and the underlying contract/event should be clearly stated.

Forgetting to add the final report to the case file

This seemingly simple mistake could lead to the case being dismissed from the outset.

11. Conclusion: Mandatory Mediation is Not a Formality, but a Strategic Step

Mandatory mediation should not be seen merely as "a procedure to be completed before filing a lawsuit.".

When executed correctly:

parties quick and relatively lower-cost solutions,
commercial and business relationships from being completely severed .
It can provide practical and applicable solutions in relationships such as those between consumers and tenants/landlords .

Against this;

Not resorting to mandatory mediation at all ,
Mishandling the process ,
or overlooking technical details such as the final record, duration, and authority ,

This could lead to the case being dismissed on procedural grounds from the outset , or to irreversible loss of rights due to statutes of limitations/preclusive periods

Therefore, when acting in a dispute subject to mandatory mediation, correctly identifying the type of dispute, properly managing the application and process, and seeking professional support from a legal expert if necessary will both prevent loss of rights and directly affect the outcome of the process.

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