What Is Mandatory Pre-Litigation Mediation?
Mandatory pre-litigation mediation is a procedural mechanism that requires parties to apply to a mediator before bringing a court action in certain disputes specified by law. This requirement does not mean that the parties must reach a settlement. What is mandatory is that the mediation process be initiated before proceedings are brought and that a record of settlement or non-settlement be issued at the end of the process.
If the parties cannot reach a settlement in mediation, they do not lose their right to bring a court action. However, the final mediation record must be appended to the statement of claim when the action is filed. This document establishes that the prerequisite for litigation has been satisfied.
In Which Disputes Is Mediation Mandatory?
Various laws have extended mandatory pre-litigation mediation to several areas. It commonly arises in the following areas:
- Claims, compensation and reinstatement sought by employees and employers,
- Certain commercial actions,
- Disputes arising from lease relationships,
- Disputes concerning the dissolution of co-ownership,
- Disputes arising from condominium ownership,
- Disputes arising from neighbouring rights,
- Certain consumer disputes.
However, not every dispute falls within this scope. The subject matter of the action, the legal status of the parties, the nature of the relief sought and the provisions of special legislation must be assessed together.
Mediation in Employment Disputes
Employment disputes were among the first areas in which mandatory pre-litigation mediation was introduced. Applying to a mediator is a prerequisite for actions concerning employee and employer claims, compensation and reinstatement claims arising from legislation or individual or collective employment agreements. Pay and compensation items such as severance pay (kıdem tazminatı), notice pay (ihbar tazminatı), overtime pay and annual leave pay may fall within this scope.
Accordingly, an application for mediation must be made before bringing an action for employment-related receivables or reinstatement. Bringing a court action directly without first applying for mediation creates a serious procedural risk.
Mediation in Lease and Real Estate-Related Disputes
Disputes arising from lease relationships are subject to mandatory pre-litigation mediation, except for eviction through enforcement proceedings without a court judgment (ilamsız icra yoluyla tahliye). In addition to lease disputes, disputes concerning the dissolution of co-ownership, disputes arising from condominium ownership and disputes concerning neighbouring rights may also fall within the scope of mandatory pre-litigation mediation under certain conditions.
The most important issue in these areas is to determine the nature of the dispute correctly. For example, claims for unpaid rent, rent determination, adaptation or eviction may have different procedural consequences. It should also be borne in mind that a separate exception applies to eviction through enforcement proceedings without a court judgment.
Mediation in Commercial Disputes
Mandatory pre-litigation mediation also applies to certain commercial actions. In particular, an application for mediation may be required for commercial actions involving claims for the payment of a sum of money or compensation. For actions for the annulment of an objection (itirazın iptali), negative declaratory actions (menfi tespit) or restitution actions (istirdat), the commercial nature of the dispute, the subject matter of the claim and the applicable special provisions must be assessed together.
In commercial disputes, it must also be examined whether the parties are merchants, whether the dispute relates to a commercial enterprise and whether the claim concerns a monetary receivable or compensation.
How Is an Application for Mediation Made?
An application for mediation is made to the competent mediation bureau. In places where no mediation bureau exists, an application may be made through the registry of the civil court of peace (sulh hukuk mahkemesi) designated for this purpose. The application must clearly specify the parties' details, the subject matter of the dispute and the rights claimed.
The scope of the application is important. If a claim not included in the mediation application is subsequently made the subject of court proceedings, a dispute may arise as to whether the procedural prerequisite has been satisfied. The heads of claim should therefore be stated clearly and as comprehensively as possible when preparing the mediation application.
Why Is the Final Record Important?
At the end of the mediation process, a record of settlement, partial settlement or non-settlement is issued. If court proceedings are to be brought, the final record of non-settlement in particular must be appended to the statement of claim. The final record identifies the parties, the subject matter of the dispute, the application date and the outcome of the process. It is therefore not merely a formal document.
An incomplete or inaccurate final record may give rise to procedural disputes during court proceedings. If an action is brought without first applying for mediation, there is a risk that it will be dismissed on procedural grounds for failure to satisfy a prerequisite for litigation.
What Happens If a Settlement Is Reached in Mediation?
If the parties reach a settlement in mediation, a settlement agreement is drawn up. The scope of the settlement, payment dates, the manner in which obligations are to be performed, costs, legal fees, confidentiality and enforceability must be stated clearly.
Under certain conditions, the settlement agreement may acquire the same enforceability as a court judgment. However, this may vary depending on the type of dispute, the signatures of the parties and their lawyers, the annotation of enforceability and any applicable special provisions. The settlement document should therefore not be drafted as an ordinary protocol; it should take account of potential future disputes concerning enforcement and interpretation.
Frequently Asked Questions
If mediation is mandatory, must the parties reach a settlement?
No. What is mandatory is not reaching a settlement, but applying for mediation before bringing a court action.
What happens if a court action is brought without mediation?
If the dispute is subject to mandatory pre-litigation mediation, the action may be dismissed on procedural grounds for failure to satisfy a prerequisite for litigation.
Is mediation mandatory in lease disputes?
Disputes arising from lease relationships are subject to mandatory pre-litigation mediation, except for eviction through enforcement proceedings without a court judgment.
Is mediation mandatory for employment-related receivables?
Yes. Applying to a mediator is a prerequisite for claims, compensation and reinstatement sought by employees and employers.
Must the final mediation record be appended to the statement of claim?
Yes. The original final record of non-settlement or a copy certified by the mediator must be appended to the statement of claim.
Sources
This article has been prepared for general information purposes and does not constitute legal advice. The assessment may vary depending on the circumstances of each case.