The Constitutional Court's decision dated 14 March 2024 and numbered 2023/160 E., 2023/160 E., 2024/77 K. annulled Article 18/A of the Law No. 6325 on Mediation in Civil Disputes ("Mediation Law"). The annulled provision imposed a sanction on parties causing the mediation to end due to their failure to attend the first mediation meeting without a valid excuse, holding them liable for all litigation costs and attorney fees, even if they were partially or fully justified in the subsequent lawsuit. Our evaluations regarding this decision and its implications were discussed in detail in our article titled Constitutional Court Annulled the Sanction for Non-Attendance to Mandatory Mediation .
With the Law on the Amendment of Certain Laws ("Amendment Law") No. 7531 published in the Official Gazette (32722) dated November 14, 2024, known as the 9th Judicial Package, a new provision was introduced to replace the annulled provision of the Mediation Law, and Article 3/12 of the Labor Courts Law No. 7036 was also amended.
According to new provision introduced by the Amendment Law enacted pursuant to the Constitutional Court's annulment decision, the party failing to attend the first meeting shall be liable for half of the litigation costs, regardless of whether they are partially or entirely successful in the lawsuit. Additionally, only half of the attorney fee will be awarded in favor of such party.
In our opinion, this regulation falls short of fully addressing the reasoning behind the Constitutional Court's annulment decision. The Constitutional Court essentially ruled that such a sanction imposed on parties, whose justifications are upheld by a judicial decision, without considering their justified position, applying exceptions or setting a certain upper limit, creates an excessive burden on them. This approach fails to strike a fair balance between the public interest and the rights to property and access to court, and thus constitutes a disproportionate restriction.
In this context, simply reducing liability for litigation costs and attorney's fees to half, without tying it to any other factors, does not adequately resolve the annulment grounds addressed by the Constitutional Court. Given the Constitutional Court's emphasis on proportionality and the need for exceptions based on the specific circumstances of the case, granting discretion to the courts to determine the awarded amounts based on specific conditions could have been a more appropriate solution. In other words, a provision enabling the courts to either not award litigation costs and attorney's fees entirely to the party failing to attend the first mediation meeting or to award a reduced amount within a capped limit depending on the case's particular conditions, could have effectively addressed the constitutional violations that led to the annulment of the previous provision while better serving the practical needs.
First published by Legalink Newsletter in Dec 30, 2024.
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