Employment & Labour

LEGAL EFFECTS OF FAILURE TO AGREE BETWEEN PARTIES IN THE MEDIATION AS A CLAUSE OF LITIGATION

In What Cases Does the Mediation Process End?

The cases of termination of mediation activity are regulated in the provision 17/1 of the Law on Mediation in Civil Disputes No. 6325. The mediation process ends in cases where the parties reach an agreement, after consulting the parties, it is determined by the mediator that it is unnecessary to make more efforts for mediation, one of the parties notifies the other party or the mediator that he/she has withdrawn from the mediation activities, the parties terminate the mediation activity by mutual agreement and it is determined that the dispute is not suitable for mediation.

In What Cases Can Disagreement Be Raised?

Although an interview cannot be held if the mediator cannot reach the parties or the parties do not participate, and accordingly the parties cannot agree, the process is terminated by the mediator. After that; the mediator immediately informs the mediation office of the situation by organizing the final report on the lack of understanding and including the name of the party who did not attend the meeting in the relevant minutes.

What Are the Consequences of Not Attending the First Meeting Without a Valid Excuse in Compulsory Mediation?

As stated in both Article 18 / A-11 of the Law and Article 25/9 of the Implementing Regulation of the Law, it has been arranged that the party that does not attend the first meeting without providing a valid excuse will be held responsible for the entire cost of the trial, even if it is partially or fully justified in the case. In addition, at the end of the trial, counsel’s fee will not be decided in favour of the party that does not participate. If there is a lawsuit to be filed on mediation activities in cases where both parties do not attend the meeting, the trial expenses incurred by the parties will be left on their own. At this point, the question of whether the mediation fee is a trial expense will be raised.

As a matter of fact, in mediation, which is a condition of litigation in Article 26 of the Regulation on the Implementation of the Law on Mediation in Civil Disputes; In case of disagreement, it is stipulated that the two-hour wage will be paid from the Ministry’s budget. In the second paragraph of the relevant regulation, it is clearly stated that the mediation fee paid from the ministry budget and covered by the parties will be counted from the trial expenses. For this reason, it can be said that the party that did not attend the first meeting without a valid excuse is also responsible for the mediation fee, even if it is partially or completely justified in the case.

The Supreme Court Draws Up Case Law on the Consequences of Not Attending the First Meeting in Compulsory Mediation with Similar Decisions:

For instance, the 9th Civil Chamber of the Supreme Court’s current decision No. 2022/41 and Decision No. 2022/1034 relates to a concrete incident in which the parties are engaged in compulsory mediation activities, the defendant did not participate in the mediation meeting without an excuse, and therefore the process ended. As a result of the trial, the Local Court decided that the defendant party who did not attend the meeting should be held responsible for the costs of the trial according to the acceptance and rejection ratio of the receivable and that the counsel’s fee should be decided on the amount of the receivable rejected in favour of the defendant. The said provision issued by the Domestic Court; according to the Article 18 of Law, it was found to be erroneous by the Supreme Court and a way to overturn it was taken. After the mediation process ends in a disagreement and the related lawsuit requirement is fulfilled, attention should be paid to the time limits in terms of the lawsuit process and claims that may be raised. Because the time for filing a lawsuit differs in terms of claims for return to work and receipt of labour. The case that will be requested to reemployment can be filed within two weeks from the preparation of the mediation final report; The case with a request for reemployment can be settled within two weeks from the preparation of the mediation final report; In cases where labour receivables are claimed, it must be considered that the period of limitations to which the claim is subject should not be exceeded.

Türküm Türkmen, Attorney at Law

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