Since January 1, 2018, a claimant must apply to a mediator before filing a lawsuit relating to monetary claims arising out of employment contracts or collective labor agreements and reinstatement claims. Lawsuits that do not comply with this prerequisite will be rejected.
Mandatory mediation was introduced in order to speed up legal proceedings and reduce associated legal costs. Mediators are obliged to finalize the process within three weeks of appointment (although a one-week discretionary extension is available), which is a swifter process than going to court. Mediators’ fees are also lower than attorneys’ fees.
There are also benefits relating to confidentiality. The mediation process must be kept confidential by law, and both parties are under strict confidentially obligations, in contrast to the public trial procedure. In fact, if one of the parties or the mediator breaches the confidentially obligation, he or she can be punished with imprisonment up to six months per the Turkish Mediation Act. This makes mediation a useful tool for parties that do not want bad (or any) publicity.
One study found that between January 2, 2018, and May 27, 2018, 65 percent of mediated disputes resulted in a settlement agreement. Within that same period, the number of applications made for discretionary mediation regarding different kinds of disputes—such as other employment disputes, contractual claims, and disputes regarding ownership of immovable property—was 15,655, 97 percent of which concluded with consensus. Only 421 of the applicants had not reached a resolution.
Even though these numbers are promising, there is still some resistance to mediation. Experience shows that while many employers are open to mediation, prepare before participating, and negotiate in good faith to end the dispute on good terms, others participate reluctantly and want to end the mediation process after the first meeting.
Mandatory mediation is an important development that will help companies acquire the habit of using alternative dispute resolution methods. This trend will hopefully spread from employment cases, for which it is mandatory, to other types of disputes, where mediation is not required and is rarely used.
Written by Beril Yayla Sapan and Asena Aytuğ Keser of Gün + Partners and Roger James of Ogletree Deakins
© 2019 Gün + Partners and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.