Ulgener
-Duygu Yazıcı Aracı
As it is known, compulsory mediation has been introduced into the Turkish Legal System and it has become mandatory for parties (with exceptions) to apply to mediation before filing an action. Also, in order to encourage all parties to participate in the mediation process, the Law on Mediation in Civil Disputes No. 6325 (“Mediation Law”) provides that in the event that the mediation process ends due to one of the parties not attending the first meeting without giving a valid excuse, the party who didn’t attended the mediation meeting will be responsible for the litigation expenses and attorney fees even if he is partially or completely justified in the case.
However, the relevant article of the Mediation Law was examined by the Constitutional Court upon the request for annulment and was found to be contrary to Articles 13, 35 and 36 of the Constitution. According to the Constitutional Court's Decision No. 2023/160 E., 2024/77 K. and dated 14/3/2024, the relevant article disrupts the fair balance between the public interest and the right to property and access to the court. In addition, the Court stated that holding the party who was completely justified in the trial, in other words, who was found to have been subjected to a completely unfair process at the end of the trial, responsible for all the costs of the litigation without taking into account of his special situation is a disproportionate limitation.
For these reasons, the Mediation Law's article stating that the party who did not attend the meeting without giving a valid excuse will be held responsible for all of the litigation expenses and that the attorney fees will not be awarded in favour of this party, even if this party is partially or completely justified in the action filed, if the mediation process was terminated due to his non-attendance, was annulled.
The decision in question will enter into force on 18 January 2025, 9 months after 18 April 2024, the date of its publication in the Official Gazette. Therefore, unless a new regulation is made on the issue, the party who was justified in the case will not be responsible for litigation expenses and attorney fees may be awarded in his favor, even if he did not attend the mediation meeting as of this date.