Ulgener

-Gül Alpay

As of 1 January 2018, mediation became a mandatory precondition for bringing legal action in disputes arising from individual or collective employment contracts, including claims for employee or employer receivables, compensation, and reinstatement.

A parallel development occurred with the introduction of Article 5/A to the Turkish Commercial Code (TCC) No. 6102. This amendment extended the mandatory mediation requirement to commercial disputes where the subject matter involves monetary claims or compensation. In both labour and commercial contexts, parties are now required to seek resolution through mediation before accessing the courts.

Procedural Aspects of Mandatory Mediation

Mediation applications must be filed with the mediation offices located within courthouses. In jurisdictions lacking a dedicated office, the secretariat of the civil court of peace acts as the mediation office. Mediators are appointed from the official registry by mediation office personnel. However, if the parties agree on a specific registered mediator, that individual will be appointed.

No fee is charged for submitting a mediation request. If the parties fail to reach a settlement, the Ministry of Justice covers the cost of the first two hours of mediation. In the event of a settlement, mediation costs are shared equally between the parties, unless otherwise agreed.

Parties may attend the sessions personally or through legal counsel. If a party is represented by an attorney, the power of attorney must explicitly authorise participation in mediation.

If the mediation process fails, the parties may proceed to litigation. Under the original framework, a party who failed to attend the initial mediation meeting without a valid excuse would be held liable for all litigation costs—even if they were ultimately successful in the lawsuit—and would be denied recovery of attorney’s fees.

Constitutional Court Intervention

This rule was challenged before the Constitutional Court, which declared it unconstitutional. The Court held that penalising a party who ultimately prevails in court—merely for failing to attend the first mediation meeting—by denying them litigation costs and attorney’s fees, imposed a disproportionate restriction on the rights to property and access to a court.

In its decision, the Court reasoned that such a rule placed an excessive burden on litigants and disrupted the necessary balance between public interest and individual rights. It therefore concluded that the provision violated Articles 13, 35, and 36 of the Constitution. However, to prevent a legal vacuum, the Court postponed the entry into force of its annulment decision for nine months from the date of publication. Accordingly, the provision was formally repealed as of 18 January 2025.

Revised Framework

Following the annulment, the relevant legislation was amended to address the Constitutional Court’s concerns while still incentivising good-faith participation in mediation. Under the new framework, if a party fails to attend the initial mediation session without a valid excuse and the process is terminated as a result, this is recorded in the final report. In the subsequent lawsuit, even if the absent party prevails in whole or in part, they will be held liable for half of the litigation costs that would otherwise be borne by the opposing party. Additionally, any attorney’s fee awarded in their favour will be capped at 50% of the amount specified under the Minimum Attorney Fee Tariff.

This revised structure aims to encourage participation in mediation without infringing upon litigants’ constitutional rights, striking a more proportionate balance between procedural efficiency and access to justice.