What is Mediation? Mandatory Mediation, Process and Legal Consequences

The first method that often comes to mind when resolving legal disputes is resorting to court. However, a lengthy litigation process is not always necessary to resolve a dispute. It is also possible for the parties to end the dispute by discussing it mutually, evaluating their rights and interests, and agreeing on a common solution.

In Turkish law, one of the most important alternative dispute resolution methods serving this purpose mediation.

With the increasing use of mediation, particularly in labor disputes, commercial disputes, consumer disputes, and rental disputes, questions such as "What is mediation?", "Is going to a mediator mandatory?", "Am I obligated to reach an agreement in mediation?", "Can we file a lawsuit if we cannot reach an agreement in mediation?", and "Is a mediation agreement as valid as a court decision?" are frequently raised.

Mediation is essentially a dispute resolution method in which parties attempt to resolve their disputes voluntarily, with the help of a neutral and independent third party.

In Turkish law, the fundamental regulation of mediation the Law No. 6325 on Mediation in Legal Disputes. According to the law, a mediator is a neutral and independent person who assists the parties in communicating and generating their own solutions. If it becomes apparent that the parties cannot reach a solution, the mediator may also offer solutions. However, the mediator cannot make decisions on behalf of the parties.

What is mediation?

The primary purpose of mediation is not to determine which party is right and which is wrong.

In a court proceeding, a judge evaluates the evidence, applies the rules of law, and renders a binding decision for the parties. Similarly, in arbitration, an arbitrator or arbitration panel resolves the dispute.

In mediation, however, the outcome of the dispute is determined by the parties involved, not the mediator.

For example, an employee might claim 500,000 TL in unpaid wages, while the employer might assert that they have no outstanding debt. In this dispute, the mediator does not rule definitively on whether the employee or the employer is right. Instead, the mediator helps the parties understand their claims and expectations, assess the legal and economic risks, and find a mutually agreeable solution.

If the parties agree, the dispute is resolved by settlement. If they cannot agree, the dispute can be taken to court if the conditions are met.

What is Mandatory Mediation?

One of the most confusing concepts in mediation mandatory mediation , or as it is called in the law, mediation as a prerequisite for litigation.

Mandatory mediation does not necessarily mean that the parties are obligated to reach an agreement.

The obligation here is not related to reaching an agreement, but to resorting to mediation before filing a lawsuit.

If a dispute is subject to mandatory mediation under the law, filing a lawsuit directly in court is not possible. The mediation process must be completed first.

If it is determined that a lawsuit was filed without first resorting to mediation, the case will be dismissed on procedural grounds due to the lack of a prerequisite for filing a lawsuit. If no agreement is reached at the end of the mediation talks, an application can be made to the court along with the final report prepared.

Therefore, the meaning of mandatory mediation is:

"you must complete the mediation process before filing a lawsuit," rather than "you have to reach an agreement .

What is Voluntary Mediation?

In situations where there is no legal obligation to resort to mediation, if the parties voluntarily seek mediation, this is called voluntary mediation

Parties can apply to a mediator after a dispute arises, before filing a lawsuit, or they can choose mediation while the lawsuit is ongoing under certain conditions.

According to Law No. 6325, parties may, as a rule, resort to mediation in private law disputes over which they can freely dispose. However, disputes involving allegations of domestic violence are not suitable for mediation.

For example, a debt dispute arising from a contract between the parties, a specific private law dispute between company partners, or a claim for compensation can be resolved through voluntary mediation if the conditions are met.

In which disputes is mediation mandatory?

In Turkish law, the scope of mandatory mediation as a prerequisite for litigation has expanded over time.

The main areas where mandatory mediation is required as a prerequisite for litigation are as follows:

Labor and Employer Disputes

In cases involving employee or employer claims, compensation claims, and reinstatement requests based on individual or collective labor agreements, mediation must be sought before filing a lawsuit, within the scope specified by law.

Severance pay, notice pay, overtime pay, annual leave pay, wage claims, and reinstatement requests are the main disputes encountered within this scope.

However, there are exceptions to the law regarding disputes such as claims for material and moral damages arising from work accidents or occupational diseases. Therefore, the fact that a dispute "arises from labor law" does not automatically mean that mandatory mediation is required in every case.

Commercial Disputes

Mediation is also a prerequisite for certain commercial disputes.

Under Article 5/A of the current Turkish Commercial Code, in cases involving monetary claims, compensation, annulment of objections, negative declaratory judgments, and restitution,mediation must be sought before filing a lawsuit, provided other conditions are also met. This scope has been expanded with the amendment that came into effect on September 1, 2023.

Particularly in matters of trade receivables between companies, payment disputes arising from contracts, and certain compensation claims, mediation has become an important dispute resolution mechanism.

Consumer Disputes

In disputes heard in consumer courts, except for exceptions stipulated in the law, mediation must be sought before filing a lawsuit.

However, disputes within the jurisdiction of consumer arbitration boards, appeals against consumer arbitration board decisions, and certain other disputes specified in the law are excluded from mandatory mediation as a prerequisite for litigation.

Rental Disputes

As of September 1, 2023, disputes arising from rental relationships have largely been brought under the scope of mandatory mediation as a prerequisite to litigation.

In many disputes, including those concerning rent determination, non-payment of rent, and eviction, mediation should be sought before filing a lawsuit.

However, provisions regarding eviction through summary execution under the Enforcement and Bankruptcy Law are an exception to this regulation.

Dissolution of Partnerships, Condominium Ownership and Neighborhood Law

Disputes concerning the division of movable or immovable property and the dissolution of partnerships , disputes arising from the Condominium Law, and disputes arising from neighbor rights are among the disputes that should be referred to mediation before filing a lawsuit.

In addition, mandatory mediation is applied as a prerequisite to litigation in legal disputes arising from agricultural production contracts, in accordance with special regulations.

How does the mediation process begin?

In mandatory mediation cases, applications are generally to the mediation office .

After the application is submitted, a mediator is assigned through the system. However, it is also possible for the parties to agree on a specific mediator from the list.

The appointed mediator obtains the parties' contact information, informs them, and invites them to the initial meeting.

Mediation meetings can be held in person, or, under appropriate conditions, using communication tools.

The parties may participate in the negotiations in person, through their legal representatives, or through their lawyers . It is also possible for experts who can contribute to resolving the dispute to participate in the negotiations.

How long does mediation last?

In mandatory mediation, the process is not designed as a lengthy legal battle that lasts for many years.

According to the general provisions of Law No. 6325, the mediator concludes the application within three weeks . In exceptional circumstances, this period may be extended by a maximum of one week.

However, specific time limits may be stipulated depending on the type of dispute.

For example, in commercial disputes, the mediation period six weeks, and in exceptional circumstances, an additional period of up to two weeks .

Therefore, when determining the mediation period, it is also necessary to consider under which law the dispute falls.

Are mediation meetings confidential?

One of the key advantages of mediation of confidentiality .

Unless otherwise agreed by the parties, the mediator is obligated to keep confidential the information and documents submitted to him/her within the scope of the mediation. The parties and other persons participating in the negotiations are also subject to confidentiality obligations.

Furthermore, specific offers, statements, and admissions made during mediation talks generally cannot be used as evidence in a subsequent legal case or arbitration proceeding.

For example, if one party offers to pay a certain amount during a mediation meeting solely to end the dispute, this alone cannot be considered an admission of debt and used against them in a subsequent lawsuit.

This feature allows the parties to conduct negotiations more freely.

Is reaching an agreement mandatory in mediation?

No.

Even in mandatory mediation, reaching an agreement is not required.

The parties may or may not reach an agreement by the end of the process. It is not possible for the mediator to force either party to accept a specific agreement.

Therefore, a person's participation in a mediation meeting does not mean they accept the other party's claim.

However, in mandatory mediation proceedings failing to attend the initial meeting without a valid excusehas legal consequences regarding court costs and attorney fees in any subsequent lawsuit. These consequences were revised following the amendments made in 2024. Exceptions in specific laws should be considered separately.

Therefore, completely ignoring a mediation invitation with the thought that "I won't reach an agreement anyway" may not be the right approach.

What happens if an agreement is reached through mediation?

The parties may reach an agreement on all or part of the dispute.

The parties determine the scope of the agreement, and if an agreement is reached, a mediation agreement document may be drawn up.

As a general rule, parties cannot file a lawsuit later regarding matters agreed upon through mediation.

Under certain circumstances, the agreement document can also be transformed into a document with the force of a court judgment by obtaining an enforceability endorsement from the court .

Moreover, in some cases where the signature requirements stipulated by law are met, the agreement document may be considered a judgment even without obtaining an enforceability clause.

Therefore, a mediation agreement should not be viewed merely as a simple "good faith protocol" between the parties. The signed document can have significant and binding legal consequences.

Is mediation possible in real estate disputes?

With the changes made in the legislation, disputes regarding the transfer of immovable property or the establishment of limited real rights over immovable property are also suitable for mediation.

These types of agreements are subject to specific legal guarantees, and it is mandatory to obtain an enforceability clause for the agreement document.

With the amendment made in 2024, a regulation was also introduced allowing one of the parties to the agreement to request registration from the land registry office after obtaining the necessary enforceability endorsement.

This situation could provide a significant opportunity, particularly for resolving certain real estate disputes between heirs or co-owners outside of litigation.

What are the advantages of mediation?

The most important characteristic of mediation is that the outcome of the dispute is not imposed by a third party; the solution is created by the parties themselves.

While a court's decision is mostly limited to legal claims, in mediation, the parties can develop more flexible solutions, provided they do not violate mandatory legal principles.

For example, instead of paying off a commercial debt in full at once, it might be possible to arrange for installment payments, restructure the parties' ongoing business relationships, or resolve specific parts of the dispute through mutual concessions.

Key advantages of mediation include the possibility of a quicker resolution, confidentiality, parties having control over the process, the protection of commercial and personal relationships, and avoiding litigation costs .

However, mediation is not a method that will necessarily result in an agreement in every dispute. Whether the agreement is in the legal and economic interests of the parties must also be evaluated.

Is a lawyer necessary in mediation?

Attending mediation meetings with a lawyer is not mandatory in all cases. However, it is important to assess the legal consequences of the agreement beforehand , especially in cases involving significant debts, commercial disputes, labor claims, rental disputes, and real estate disputes

Because mediation doesn't just determine "how much money will be paid.".

Issues such as payment dates, installments, interest, waiver and release provisions, what happens in case of default, which part of the dispute is terminated, which rights are reserved, and the enforceability of the agreement can have serious consequences in the future.

For example, a situation where one party only wants to agree on a specific claim item but, due to the terms of the agreement, ends up waiving other rights arising from the dispute, could create an undesirable outcome.

Therefore, especially in high-value or legally complex disputes, the mediation process should be viewed not merely as attending meetings, but a negotiation and contract-building process .

Conclusion

Mediation is an important alternative dispute resolution method that allows disputes to be resolved through mutual negotiation between the parties before or during ongoing litigation.

While mediation is entirely optional for some disputes under Turkish law, for labor disputes, certain commercial disputes, consumer disputes, rental disputes, dissolution of partnerships, disputes arising from condominium ownership and neighborhood law, and disputes regulated by certain special laws .

However, mandatory mediation does not necessarily mean that the parties must reach an agreement. If the parties cannot reach an agreement, a final report is drawn up, and if the legal conditions are met, the dispute can be taken to court.

If an agreement is reached, the resulting document may directly affect the parties' future rights and, under certain conditions, may have the force of a court judgment. Therefore, during mediation talks, it is important to evaluate not only the current state of the dispute but also the potential legal consequences of the agreement in the future.