Turkey: Information About Compulsory And Arbitrary Mediation Activities In Labor Law

In Labor Law, there are some important differences between compulsory and arbitrary mediation.

Within this framework, you can find the details about compulsory and arbitrary mediation in labor law disputes as below:

Compulsory and Arbitrary Mediation in Labor Law

Mediation, one of the alternative dispute resolutions methods, is regulated by Mediation in Legal Disputes Law No. 6325 (In Turkish.), and a legal basis has been prepared for legal disputes. Mediation is the method used by the parties for a private law dispute before or after filing a lawsuit under the arbitration of an impartial third party (mediator) who has received specialized training, chosen by their own free will.

There are two types of meditation in Turkish Law; "compulsory mediation" and "arbitrary mediation."

Compulsory Mediation: In Turkish Law, the obligation to apply to a mediator before filing a lawsuit for some disputes is regulated by the legislator.Compulsory mediation is a cause of action for these disputes. In other words, in disputes in which mediation is compulsory, lawsuits filed without a mediator are rejected due to the absence of a litigation requirement.

Arbitrary Mediation: In arbitrary mediation, although the parties do not have to apply to a mediator, they prefer to apply to a mediator instead of filing a lawsuit to resolve the dispute. The parties can apply to an arbitrary mediation regarding any private law dispute.

Mediation In Labor Law

With the Official Gazette numbered 30221 and dated 25.10.2017, the amendments to Labor Courts Law No. 7036 were published, and the regulations regarding mediation entered into force on 1 January 2018. Pursuant to the aforementioned regulations, an obligation to apply to a mediator has been introduced as a prerequisite for the lawsuits to be filed regarding receivables, compensation claims, and reinstatement demands of employees or employers arising from collective or individual employment agreements. In case a mediator is not applied to before filing a lawsuit, the lawsuit is dismissed procedure due to the absence of litigation requirements. In this regard, the plaintiff should attach the mediation record to the petition, indicating that no agreement could be reached at the end of the mediation.

• Compulsory Mediation Disputes in Labor Law:

The compulsory mediation applies to employment claims related to compensation and receivables arising from employment relations and reinstatement. Apart from the Labor Law, together with the employment contract regulated in the Turkish Code of Obligations, collective labor law agreements regulated in the Trade Unions and Collective Bargaining Agreement Law are considered within the scope of compulsory mediation in disputes arising from the employment contract regulated in the Maritime Labor Law and the Press Labor Law. However, cases related to the determination of insurance (action for fixing the period of service), work accidents, and occupational diseases are not subject to compulsory mediation, but a lawsuit can be filed directly without making an application. To resolve the legal problem between the employee and the employer, they have to apply to a compulsory mediator.

• Arbitrary Mediation in Labor Law:

In the Labor Law, the employee and the employer may voluntarily resort to mediation, which is a fast and functional trial, as an alternative dispute resolution method to resolve the legal dispute between them.

For instance, the employer wants to terminate the employment contract by paying the employer's monetary acquisition arising out of the employment contract, they can prefer to terminate the contract with an arbitrary mediator mediator to clarify and make it official paying date, amount, and who will be responsible for the mediator's fee.

Differences Between Compulsory Mediation and an Arbitrary Mediation Within the Scope of the Labor Law

Applying to a mediator for employment disputes is a litigation requirement when filing a lawsuit concerning monetary claims by employee or employer arising out of employment contracts, collective labor agreements, or reinstatement claims.However, if the employee and employer want to reach an agreement without filing a lawsuit, they can prefer to apply to an arbitrary mediator. For this reason, there are some differences in applying to a compulsory and an arbitrary mediator mediator. These differences are;

• Although compulsory mediation is a prerequisite for filing a lawsuit in labor courts, arbitrary mediator mediation is an alternative dispute resolution method used by employers and employees instead of voluntarily filing a lawsuit.
• Employers and/or employees have to apply compulsory mediation in mediation offices located in courthouses. In arbitrary mediator mediation, the parties may appoint a mediator of their choosing without seeking authorization.
• In the compulsory mediation process in the Labor Law for reinstatement claims and monetary claims by the employee or the employer arising out of employment contracts, the mediators should finalize the compulsory mediation process within 3 weeks from the date of their appointment. This period may be extended by the mediator for a maximum of one week more. Therefore, the compulsory mediation process in labor cases should be terminated/completed/finalized within a maximum of 4 weeks.In arbitrary mediator mediation, there is no limited timeline for the mediator to finalize the application, it is enough to complete the process within a reasonable time.

Conclusion

As an alternative solution, mediation has been practiced in the Turkish law/legal system recently. This institution, which is included in Turkey's legal system as an alternative dispute resolution, is aimed to reduce the workload of labor courts by making it compulsory in some types of lawsuits as of January 1, 2018, with the amendment made to the Law on Labor Court No. 7036. It is an alternative dispute resolution method that accelerates the process and provides financial convenience to the parties in terms of employees and employers.

The mediation record/report signed by the parties is considered as a verdict document.

During the mediation, the impartiality and independence of the mediator have become one of the most critical matters in the parties' seeking rights.

This article aims to provide a brief and general overview of the mediation process in labor law disputes in Turkey, it does not constitute legal advice. Before taking any action or relying on the information given, addressees of this Article should seek specific advice on the matters which concern them.

You can reach the Mediation Law in Civil Disputes No. 6325 via the link (In Turkish.)