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The function of resolving disputes is essentially a matter for the state, and the state performs this function by exercising judicial power. Alternative dispute resolution methods, on the other hand, are optional dispute resolution methods that exist alongside the state's judicial organs, in which an impartial third person helps the parties resolve the dispute and devises solutions to eliminate the dispute between them.
Alternative Dispute Resolution Methods and Mediation
The function of resolving disputes is essentially a matter for the state, and the state performs this function by exercising judicial power. Alternative dispute resolution methods, on the other hand, are optional dispute resolution methods that exist alongside the state's judicial organs, in which an impartial third person helps the parties resolve the dispute and devises solutions to eliminate the dispute between them.
Although there are various types of alternative dispute resolution methods, the three most fundamental ones are negotiation, mediation and arbitration.
Negotiation is an alternative resolution method in which the parties mutually set out and discuss the subject matter of the dispute, their claims and the kind of resolution they want, whereas mediation is a method of resolving the dispute between the parties with the help of an impartial third person, the mediator. Arbitration, another method, is the resolution of the dispute by private persons called arbitrators instead of by the state judiciary.
Mediation as an Alternative Dispute Resolution Method
Mediation is a voluntary dispute resolution method conducted by an impartial and independent third person who has received specialist training, and aims to enable the parties to come together and develop a resolution process for their dispute.
As defined in the Law on Mediation in Civil Disputes No. 6325 (HUAK) of 07/06/2012, mediation is “a dispute resolution method conducted voluntarily with the participation of an impartial and independent third person who has received specialist training, who brings the parties together by applying systematic techniques for the purpose of discussion and negotiation, who establishes a communication process between them so that they understand one another and thus produce their own solutions, and who may also put forward a settlement proposal where it becomes apparent that the parties cannot produce a solution” (Law No. 6325, Art. 2).
The parties have equal rights throughout the mediation; in short, all of their rights in respect of the entire process are equal, in the sense that neither party is left out of the process or has its right to speak restricted relative to the other party. Unless the parties agree otherwise, the mediator is obliged to keep confidential the information, documents and other records submitted to him or her, or obtained in any way, within the scope of the mediation activity. The parties are also obliged to comply with confidentiality. A mediator who acts in breach of the confidentiality rule may be struck off the register of mediators. He or she also bears civil and criminal liability.
Since mediation is essentially an alternative resolution method, the parties have the right to apply, or not to apply, to this route. A series of at least fifteen disputes in which one of the parties is the same and which are brought within one month is regarded as serial disputes. However, since 1 January 2018, applying to a mediator for employee receivables has been made mandatory and has become a condition precedent to bringing an action. In short, mediation has ceased to be an alternative resolution route and has become a mandatory one. The main purpose of this is to reduce the workload of the courts and to enable the employee to obtain his or her receivables at lower cost, without being tied to protracted proceedings.
Mediation in Employment Disputes in Türkiye
The purpose of alternative resolution routes in employment disputes is to resolve disputes between employee and employer in a shorter time, at lower cost, and in a fair and amicable manner. The institution of mediation as a condition precedent to bringing an action first entered our law with the Labour Courts Law No. 7036. Pursuant to Article 3, paragraph 1 of the Labour Courts Law, in actions brought on the basis of the law, or of an individual or collective employment agreement, concerning employee or employer receivables and compensation, and in reinstatement claims, having applied to a mediator is a condition precedent to bringing the action. Put differently, in these actions it is mandatory to have applied to a mediator before filing the action. Failure to make this application will be treated as a lack of a procedural precondition under Article 114 of the Code of Civil Procedure (HMK). However, in mediation talks conducted by the free will of the parties, there is no obligation to reach an agreement. If agreement cannot be reached in mediation, the parties will be able to seek their rights before the court.
The parties may also apply to a mediator voluntarily for disputes that do not fall within the scope of the mandatory mediation specified in the law. According to Article 3 of the Labour Courts Law, there is no obligation to have applied to a mediator before filing an action for pecuniary and non-pecuniary damages arising from a work accident or occupational disease, or in related declaratory, objection and recourse actions. The parties to such disputes may bring an action before the Labour Courts or may also apply to the institution of mediation.
Mandatory Mediation in Reinstatement Actions
As from 01.01.2018, an employee whose employment contract has been terminated, alleging that no reason was given in the notice of termination or that the reason given is not a valid reason, is required to apply to a mediator with a reinstatement claim within one month from the date of notification of the notice of termination. Where there is a principal employer–subcontractor relationship, when an application is made to a mediator with a reinstatement claim, in order for an agreement to be reached the employers are required to take part in the mediation talks together and their intentions must be in accord. An employee who does not apply to a mediator within the one-month preclusive period alleging the invalidity of the termination loses the right to bring a reinstatement action; and the termination made by the employer also produces the effects and consequences of a valid termination.
The Mediation Process
Competent Mediation Bureau:
The mediation application is made to the mediation bureau at the place where the other party is domiciled or where the work is performed; where there is more than one counterparty, the application is made to the mediation bureau at the place of domicile of one of them. If there is no mediation bureau, the application is made to the registry of the civil court of peace.
Appointment of the Mediator:
The mediator who will serve may be appointed by the mediation bureau from among the mediators registered in the register of mediators, or the parties may agree on a mediator from a list sent to them.
The appointed mediator informs the parties of the appointment and invites them to the first meeting. The parties may take part in the mediation talks in person or through their legal representatives or attorneys, and in addition an employee authorised in writing by the employer may take part in the talks on the employer's behalf. Where there is a principal employer–subcontractor relationship, when an application is made to a mediator with a reinstatement claim, in order for the parties to reach an agreement the employers are required to take part in the mediation talks together and their intentions must be in accord.
Duration of Mediation:
In employment actions, mediation can only be conducted within the periods provided for by law. According to Article 3, paragraph 10 of the Labour Courts Law, the mediator must conclude the application within three weeks from the date of appointment. In cases of necessity, this period may be extended by the mediator by a maximum of one week. However, in voluntary mediation in employment actions, the limitation provided for in that article does not apply with respect to duration.
From the application to the mediation bureau until the date on which the final report is drawn up, limitation periods are suspended and preclusive periods do not run.
Termination of Mediation:
According to Article 7, paragraph 1 of the Law on Mediation in Civil Disputes, titled “Termination of mediation”, mediation ends in the following cases;
- The parties reach an agreement,
- After consulting the parties, the mediator determines that further efforts for mediation are unnecessary,
- One of the parties notifies the other party or the mediator that he or she has withdrawn from the mediation activity,
- The parties agree to end the mediation activity,
- It is determined that the dispute is not suitable for mediation.
Where mediation ends in the ways indicated, the mediator draws up a final report signed by the parties, their legal representatives or their attorneys.
In paragraph 2 of the same article, these possibilities are listed as the parties' reaching an agreement, not reaching an agreement, or the process concluding in another way.
The rules applicable where the parties reach an agreement as a result of the mediation talks are set out in Article 18 of HUAK. Where an agreement is reached at the end of the mediation activity, no action may be brought by the parties on the matters agreed upon. An action may be brought on matters on which no agreement could be reached in mediation. The non-agreement report drawn up to record that the parties could not agree, bearing the signatures of the parties, their attorneys or legal representatives and the mediator, must be attached to the petition of the action to be brought before the Labour Court. Otherwise, if it is not submitted to the case file even within the additional period to be granted for submission, the action will be dismissed on procedural grounds.
Where an agreement is reached at the end of the mediation activity, the scope of the agreement is determined by the parties, and where an agreement document is drawn up, this document is signed by the parties and the mediator. (Law on Mediation in Civil Disputes, Art. 18, para. 1) If the parties reach an agreement at the end of the mediation activity, they may request that an annotation of enforceability be placed on the agreement document. The parties may request the annotation of enforceability of the agreement document from the competent court with jurisdiction. The agreement document is valid even without an annotation of enforceability. However, an agreement document bearing an annotation of enforceability is treated like a court decision, that is, like a document having the nature of a judgment. An agreement document bearing an annotation of enforceability may, just like a court decision, be put into enforcement proceedings by way of enforcement based on a judgment.
Under the mediation rules for employment actions, in cases where the parties cannot be reached, where no talks can be held because the parties do not attend, or where an agreement is or is not reached as a result of the talks held, the mediator ends the mediation activity, draws up the final report and immediately notifies the mediation bureau of the situation.
According to Article 21 of the Labour Law, where, at the end of mediation talks held on a reinstatement claim, the parties agree that the employee will be reinstated, they are required to determine: a) the date of reinstatement, b) the monetary amount of the wages and other entitlements of the employee that have accrued, up to a maximum of four months, for the period during which he or she was not employed, c) the monetary amount of the compensation to be paid to the employee if he or she is not reinstated. Otherwise, the agreement is deemed not to have been reached and the final report is drawn up accordingly.
If no agreement is reached as a result of the mediation talks, the parties may bring an action before the labour court within two weeks from the date on which the final report is drawn up. Although the law provides that the start of the two-week preclusive period for bringing an action is “the date on which the report is drawn up”, this must be understood as the date on which the final report drawn up by the mediator is served on the employee. Moreover, interruption or suspension of this period is not possible either.
Mediation Fee:
According to Article 3 of the Labour Courts Law, where the parties reach an agreement at the end of the mediation activity, the mediation fee is borne equally by the parties, unless otherwise agreed, in accordance with Part Two of the Mediation Fee Tariff annexed to the Mediation Minimum Fee Tariff (the “Fee Tariff”).
Where the parties cannot be reached at the end of the mediation activity, no talks can be held because the parties do not attend, or the parties fail to agree after talks lasting less than two hours, the fee for two hours is paid from the budget of the Ministry of Justice in accordance with Part One of the Tariff. Where the parties fail to agree after talks lasting more than two hours, the fee for the portion exceeding two hours is borne equally by the parties, unless otherwise agreed, in accordance with Part One of the Tariff, taking into account the subject matter of the dispute. The mediation fee paid from the budget of the Ministry of Justice and borne by the parties is counted as part of the litigation costs.
Trainee Attorney at Law Aleyna Nur Acır
