Turkey: Mandatory Mediation In Labor Law And Legal Character Of Mediation Minutes

Last Updated: 28 January 2019
Article by Feyza Sultan Karakullukcu
Most Read Contributor in Turkey, January 2019

INTRODUCTION

Mediation has taken its place as one of the alternative dispute solutions with the Law on Mediation in Civil Disputes numbered 6325 ("Law No:6325") in Turkish law. The provision of Article 3 of the Labor Courts Code ("Law No:7036") stipulates a condition to apply the mediator at first in disputes relating to labor law disputes. In this respect, the mediation offered as a condition has ceased to be one of the alternative dispute resolution methods and turned into a cause of action. Considering historical and sociological reasons, it is seen that the legislator's intention to make such an arrangement is to reduce the burden of labor courts. However, it should be noted that mediation is not an alternative method to court judgment, but a procedure that helps courts in accessing justice.

1. MANDATORY MEDIATION IN LABOR LAW

Instead of resolving disputes through litigation, the parties' discontinuance of disputes with their wills through mediation has been an alternative way of dispute resolution both for the preservation of social peace and for reducing the workload of the courts. Due to the high proportion of labor disputes in total cases, the legislator has been obliged to apply mediation through the Law No:7036. Although Article 3 (1) of the Law No:6325 states, "the parties shall be free to resort to a mediator, to continue or finalize the process, or to cease such process" the Law No:7036 considers the application of mediation as a cause of action.

According to Article 3 of the Law No:7036, in cases of compensation claims raised by employees or employers based on individual employment agreements or collective agreements and for re-employment lawsuits, it is mandatory for the parties to submit their case to a mediator before filing a lawsuit before the labor courts. As a cause of action, mediation has entered our legal system for the first time.

When the mediation is examined in terms of the Code of Civil Procedure ("Law No:6100"), Article 114 of the Law No:6100 counts the terms of the cause of action, which are valid in all cases. While the court can observe the existence of the circumstances of the cause of action at every stage of the case, the parties can always assert the lack of cause of action deficit. If the cause of action deficit is determined, the court rejects the case and if it is possible to remedy the cause of action requirement, the court will give a definite time to complete it. Parallel to this regulation, another provision is included in the Law No:7036. Article 3 (2) of Law No:7036 states that parties whose reemployment lawsuits are dismissed because of such reason may apply to a mediator within two weeks from the notification of the final verdict and employees whose employment agreements have been terminated without justifiable and/or valid reason are obligated to apply to a mediator with a reemployment request within one month from the date of termination.

The application area of the mandatory mediation is determined as the cases related to the claims of the parties arising from the employee' and employers' disputes and reinstatement lawsuits. With this arrangement, there is no difference between the fact that they are based on the law, individual employment contract or collective agreement.

2. EXECUTABILITY OF MEDIATION MINUTES

At the end of the mediation, the parties are documented with minutes of agreement, disagreement or concluding of mediation. In order to avoid any doubts as to whether or not the mediation has ended or when it ends, a report must be documented in minutes. If the parties agree, the scope of the agreement reached is determined by the parties and an agreement document is issued. In accordance with article 14 (4) of Law No:6325, in the event the mediation is terminated, the mediator is obliged to preserve the notification served to them, documents entrusted ad possessed and the written report prepared regarding the final outcome of the mediation for five years.

In the case of mandatory mediation, the parties have the right to sue in the labor court with the final minutes because of mediation is deemed as a cause of action, if they do not agree with the mediator before take an action. The fact that mediation is cause of action does not necessitate the agreement of the parties.

According to article 18 (2) of The Law No: 6325, if the parties reach an agreement at the end of the mediation, they may request the issuance of annotation on the executability of this agreement document. However, in the case of agreement of the parties at the end of the mediation, the agremeent document shall be deemed to be a writ without any executability annotation.

Article 35/A of Attorneys Law numbered 1136 states that "... in a memorandum and signed jointly by the attorneys and the clients. Such memoranda are in the nature of a court decision in the sense of Article 38 of the Enforcement and Bankruptcy Law." In this way, the agreement document signed by the parties and the mediator is considered as a writ at the end of the mediation procedure. This is a measure taken to shorten the length of the proceedings and it is attempted to prevent the prolongation of the mediation process by adding the period of attaching an executability annotation to the mediation agreement documents. The execution follow-up based on a document as a writ is called enforcement of judgement. In order for the execution to be followed, a document issued by a court on the party initiating the follow-up must be in the form of a court order which is a writ. Although the mediation minutes are not included in the writ stated in Article 38 of the Execution Bankruptcy Law numbered 2004, one of the documents that are considered as a writ according to the special provisions are mediation agreements based on 18 (2) of Law No: 6325.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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