“Mediation is an alternative dispute resolution method that aims to resolve existing legal disputes between parties through mutual negotiations before initiating the litigation process. Mediation processes can be categorized under two headings: “voluntary mediation” and “mandatory mediation.”
Under voluntary mediation, parties have the option to either initiate the legal process according to their own desires and demands or resort to the mediation institution for resolving the dispute.
In labor law, mandatory mediation was introduced to our legal system with Law No. 7036 dated October 12, 2017, on Labor Courts. Article 3 of this law states:
“In cases filed with a claim for individual or collective labor receivables and compensation, as well as reinstatement based on a law or collective labor agreement, it is a requirement to apply to a mediator.”
Accordingly, if litigation proceedings are initiated without making a mediation application, serious problems such as the rejection of the lawsuit on procedural grounds, in accordance with Articles 114 and 115 of Law No. 6100, may arise. Such a deficiency can lead to not only loss of labor and time but also irreparable loss of rights. Therefore, it is crucial to handle the process from the beginning with the assistance of specialized lawyers.
MEDIATION TIMEFRAMES The mediator must conclude the process within 3 weeks from the date of assignment. However, in the presence of compelling circumstances, this period can be extended for an additional week. The aim of the Mediation Law, which regulates mediation processes in Legal Disputes, is to resolve the disputes within a short timeframe.
As for the application to the mediator, the general statutes of limitations apply as a rule. However, the only exception to this rule is encountered in reinstatement cases. In cases of unfair dismissal by the employer, the employee must apply to the mediator within 1 month from the date of dismissal notice. If no agreement is reached at the end of the process, the lawsuit must be filed within 2 weeks from the date of the final report.
DO STATUTES OF LIMITATIONS PAUSE DURING MEDIATION? One of the key considerations before initiating a litigation process regarding a dispute is whether there are any statutes of limitations or prescriptive periods, and whether such periods have expired in terms of the specific case. Often, overlooked time limits unfortunately lead to loss of rights. This issue is explicitly regulated in Law No. 6325 on Mediation in Legal Disputes.
From the moment the applicant applies to the mediation office, the statutes of limitations are suspended and the prescriptive periods do not run until the date of the final session report of the mediation process.”
If one of the parties fails to attend the initial mediation meeting without a valid excuse, the mediation process is terminated. In the subsequent litigation process initiated based on the mediation application, even if the non-attending party is partially or completely justified, they will not be awarded legal expenses and attorney fees in their favor.
If neither party attends the mediation meeting, regardless of whether they are justified in the litigation expenses they have incurred, they will have to bear the costs themselves.
CONFIDENTIALITY IN MEDIATION Confidentiality is one of the fundamental principles of the mediation process. The purpose of the mediation process is to create a safe environment for parties to negotiate and reach a settlement within the framework of their own thoughts and interests.
Mediation meetings involve the parties and the mediator, who is in an impartial position independent of the parties. Third parties can only attend the meetings with the consent of the parties.
Moreover, the evidence, proposals, and views presented by the parties during the meeting cannot be used as evidence in the litigation process. Even if the parties admit certain events and allegations during the meeting, these cannot be submitted as evidence and relied upon in the judgment.
COSTS IN MEDIATION If an agreement is reached as a result of the mediation process, the general rule is that the parties share the mediation fee determined according to the mediation fee schedule equally. However, the parties can agree otherwise based on their own arrangements.
If no agreement is reached at the end of the process, the Treasury covers the costs of meetings lasting up to two hours, while the portions exceeding two hours are equally borne by the parties.
CONCLUSION OF THE MEDIATION PROCESS During the mediation process, meetings are held for the parties to discuss and negotiate the disputed issues. There is no obligation to conclude these meetings in a single session. The mediator, if deemed necessary and subject to the requests of the parties, can hold multiple meetings while adhering to general timeframes.
If the parties fail to reach a settlement through negotiations between the applicant and the opposing party, the final session report is prepared and signed mutually as “NO AGREEMENT.”
If the parties reach an agreement through negotiations between the applicant and the opposing party and find a common ground on the disputed issues, the final session report is prepared as “AGREEMENT,” and the details of the agreed-upon matters are included in the Settlement Agreement.
ARE MEDIATION DECISIONS BINDING? If no agreement is reached at the end of the mediation process, the option of litigation is always available. Taking into account the statutes of limitations, the parties can resort to litigation.
If an agreement is reached between the parties at the end of the mediation process, regarding the matters agreed upon and documented with the Settlement Agreement, the parties cannot initiate a new litigation process or file a lawsuit. However, the only exception to this is if it can be proven that there was coercion, fraud, or a situation that impaired free will during the agreement.
It should be noted that mediation processes, compared to litigation, can lead to a quicker resolution of individuals’ rights and claims. However, if not conducted with the guidance of knowledgeable attorneys from the beginning, these processes, which lack expertise and experience, can result in irreparable and significant losses of rights. Therefore, it is of great importance to follow the process with experienced lawyers from the outset.
Our office, located in the İzmit district of Kocaeli province, provides consultancy and, in the future, legal representation services in all aspects of labor law, including mediation processes, with specialized labor law attorneys.