From 01.01.2018 Mediation Is Mandatory In Turkish Employment LawOctober 27, 2017
The Labor Courts Law Proposal has been accepted in Turkish Grand National Assembly and The Code has been published in Official Gazette on 25.10.2018
The new law will make noticeable changes in Turkish Labor and Social Security Law. One of them is that from 01.01.2018 mediation procedure will be mandatory before to bring an action. We as Okyay | Evren Law & ADR and explained the procedure to you.
The Reason for Law
The reason for the law is explained as labor relations have changed since the former law is published 67 years ago in 1950, country’s population and workload of judiciary have increased, field of operations and technology have changed and there is a necessity for the new law because of changed Code of Civil Procedure(HMK).
Major Changes in Law
Article 3 of the Law stipulates that it is mandatory to apply mediation in;
- Claims related to labor relations and compensation cases by employee or employer
- Re-employment cases
before to bring an action.
According to this arrangement, if the claimant does not apply to mediation before to bring an action, his action will be dismissed without prejudice by the court.
The claimant obliged to add “final records of mediation” to his petition if they could not sign an agreement with the defendant.
- Who is the mediator and what is mediation?
“Voluntary mediation” is in force in Turkish Law since 2013. But “mandatory mediation” will be in force for the first time.
The mediator is an impartial and independent person who brings conflicted parties together and guides them to solve the related conflict.
Mediation is a confidential process for both of the parties and mediator. If the parties sign an agreement after mediation process, this agreement will have the force of court order. Thus, the articles of this agreement will be enforced easily
- Who will appoint the mediator?
After the application from one of the parties to the courthouse, the mediator will be appointed from registered mediators list by Mediation Offices. Mediation Offices will be established in courthouses. The claimant should applicate to the courthouse that is within borders of defendant’s residence or workplace. But if the parties agree on a mediator, this mediator will be appointed for this conflict.
- What will be the process flow?
The Mediation Office will share the contact information of the parties with the appointed mediator. The mediator will contact the parties and notify them of the appointment. Then mediator will invite the parties to first meeting.
Mediator concludes the process in three weeks after the appointment. This duration can be extended for one week in obligatory cases. The duration will not start from application to Mediation Office but the appointment of the mediator.
Conclusion of the process identified as above circumstances;
- If mediator fails to contact the parties
- If the parties do not attend meeting
- If the parties fail to agree
- If the parties agree and sign an agreement
In these circumstances, the mediator will prepare “final record of mediation” and notify the Mediation Office.
Application to Mediation Office puts the statute of limitation on hold until preparation of final minutes of mediation.
- Is it mandatory to attend mediation meetings?
Attending to mediation meetings is not mandatory for the parties.
But if one of the parties does not attend to the meeting without just cause and process concludes because of this, there will be a sanction to this party. Accordingly, this party will be responsible for court expenses even if he wins the lawsuit.
With this provision, it is aimed to ensure that mediation process is used by conflicted parties.
If both of the parties do not attend to the first meeting, court expenses will be covered by them each.
- Who will pay the mediation cost?
If the parties agree, mediation cost will be covered equally by the parties unless otherwise consented upon.
But the parties could determine freely in the agreement that who will pay the mediation cost.
If the parties fail to agree, first two hours of mediation cost will be covered by the State.
If the parties fail to agree and mediation process exceeds two hours, this exceeding part will be covered equally by the parties unless otherwise consented upon.
- How much does mediation cost?
If the parties fail to agree;
As it mentioned above first two hours of mediation cost will be covered by the State. If mediation process exceeds two hours, this exceeding part’s cost will be 120 Turkish Liras per hour (approximately 35 USD)
If the parties agree;
Mediation cost will be calculated upon agreed amount. It will cost approximately half of Minimum Attorneyship Fee Tariff and will be covered by the parties.
- Which actions have exempted from this process?
The mediation process will not be mandatory for the actions that arise from working accident and industrial disease.
- Mediation within the context of re-employment
An employee who wants to bring a re-employment action against employer and claims that termination of the employment contract by the employer is unfair must applicate to mediator within a month from date of termination notification.
If he does not applicate to the mediator and brings an action, his action will be dismissed without prejudice by the court. An employee can applicate to mediator within two weeks from the date of notification of this court decision.
If the parties agree in the mediation process, the start date of re-employment and conditions of violations to an agreement must be determined. Otherwise, the agreement will not be valid.
If the parties fail to agree in the mediation process, the claimant could bring an action within two weeks from the preparation of final minutes of the mediation process.
- Enforcement Provisions
Articles relating mandatory mediation will not affect on-going lawsuits before first degree courts, Regional Courts of Justice and Court of Appeal.
With this provision, it is aimed to prevent probable problems in this question.
Mediation becomes mandatory to bring an action for the first time in Turkish Law by Labor Courts Law. With this arrangement, it is aimed to reduce the current workload of the judiciary and it is encouraged to choose alternative dispute resolution methods in conflicts.
We wish that the Law makes it more just, fast and easy to solve conflicts between employee and employer.