Obligation to Apply to a Mediator

LAW ON LABOR COURTS NO. 7036 AND ITS SIGNIFICANT CHANGES – 1
With the Law on Labor Courts No. 7036 dated 12.10.2017, published in the Official Gazette No. 30221 dated 25.10.2017,
Labor Courts Law No. 5521, which generally regulates the rules regarding the establishment, duties, authority and trial procedures of labor courts, has been repealed, and some articles of Labor Law No. 4857, Law No. 6325 on Mediation in Legal Disputes, and Law No. 6356 on Trade Unions and Collective Labor Agreements have been amended in accordance with the provisions of the new Labor Courts Law.
The most important change brought by the new law is the “OBLIGATION TO APPLY TO A MEDIATOR” before filing a lawsuit in a significant portion of labor law cases as of 01.01.2018.

A mediator is defined as follows in the Law on Mediation in Legal Disputes No. 6325; “a natural person who carries out mediation activities and is registered in the registry of mediators organized by the Ministry of Justice”, and mediation is defined as follows in the same law; “a dispute resolution method carried out voluntarily and with the participation of an impartial and independent third party who has received specialized training and who brings the parties together for the purpose of meeting and negotiating by applying systematic techniques, who establishes a communication process between them in order to ensure that they understand each other and thus produce their own solutions, who can also offer a solution proposal if it is revealed that the parties cannot produce a solution”. As of 01.01.2018, “Applying to a Mediator” is a condition for filing lawsuits based on individual or collective labor agreements for employee or employer receivables and compensation and reinstatement, and if a lawsuit is filed without applying, these lawsuits will be rejected due to lack of a condition for filing.

Article 3 of the aforementioned Law is titled “Mediation as a condition for filing” and the regulations regarding mandatory mediation are included in this article;

ARTICLE 3- (1) Applying to a mediator is a condition for filing lawsuits based on the Law, individual or collective labor agreements for employee or employer receivables and compensation and reinstatement.

(2) The plaintiff must attach the original of the final report stating that no agreement could be reached at the end of the mediation activity or a copy approved by the mediator to the petition. If this obligation is not met, the court sends an invitation to the plaintiff, warning that the final report must be submitted to the court within a one-week deadline, otherwise the case will be dismissed on procedural grounds. If the warning is not complied with, the case is dismissed on procedural grounds without the petition being served on the other party. If it is understood that a case was filed without applying to a mediator, the case is dismissed on procedural grounds without any action being taken due to the absence of a lawsuit requirement.

(3) The provision of the first paragraph shall not apply to material and moral compensation arising from work accidents or occupational diseases, and related determination, objection and recourse cases.

(4) The Mediation Department lists the registered mediators who want to mediate in accordance with this article, indicating their areas of expertise, if any, according to the justice commissions of the first degree courts of the judiciary in which they want to work, and notifies the relevant commission presidencies of the lists. The commission presidencies shall send these lists to the mediation offices in their jurisdictions, or to the registry office of the civil court of peace that they shall assign in places where no mediation office has been established.

(5) The application shall be made to the mediation office of the opposing party, or if there is more than one opposing party, in the place of residence of one of them or in the place where the work is carried out, or to the registry office assigned in places where no mediation office has been established.

(6) The mediator shall be determined by the office from the list notified to the commission presidencies. However, if the parties agree on any mediator included in the list, this mediator shall be assigned.

(7) The applicant party shall provide the mediation office with all kinds of contact information regarding itself and the opposing party, if it has such information. The office shall also be authorized to investigate the parties’ contact information in official records. The relevant institutions and organizations shall be obliged to provide the information and documents requested by the office.

(8) The contact information regarding the parties shall be provided to the assigned mediator by the office. The mediator takes this contact information as a basis, and can also conduct research on his/her own when necessary. He/she informs the parties about the assignment using all means of communication in terms of the information he/she has, and invites them to the first meeting. He/she documents the procedures regarding the information and invitation.
(9) The mediator cannot automatically consider whether the office that made the assignment is authorized. The other party may object to the authority of the mediation office by presenting documents regarding the place of residence and the place where the work is done at the latest at the first meeting.

In this case, the mediator shall immediately submit the file to the office to be sent to the relevant civil court of peace. The court shall make a final decision on the authorized office after examining the file without charging any fees and shall return the file to the office.

The court decision shall be notified to the parties by the office in accordance with the provisions of the Notification Law No. 7201 dated 11/2/1959. In the event that the objection to authority is rejected, the same mediator shall be reassigned and the periods specified in the tenth paragraph shall start from the new assignment date. In the event that the objection to authority is accepted, an application may be made to the authorized office within one week from the notification of the decision. In this case, the date of application to the unauthorized office shall be accepted as the date of application to the authorized office. The authorized office shall assign a mediator in accordance with the sixth paragraph.
(10) The mediator shall finalize the application within three weeks from the date of assignment. This period may be extended by the mediator for a maximum of one week in cases of necessity.

(11) In cases where the parties cannot be reached, the meeting cannot be held because the parties did not attend, or an agreement is reached or not reached as a result of the meetings held, the mediator shall terminate the mediation activity and prepare the final report and immediately report the situation to the mediation office.

(12) In the event that the mediation activity ends due to one of the parties not attending the first meeting without a valid excuse, the party who did not attend the meeting shall be indicated in the final report and shall be held responsible for the entire litigation expense, even if this party is partially or completely right in the case. In addition, no attorney’s fee shall be awarded in favor of this party. In cases to be filed regarding the mediation activity that ended due to the failure of both parties to attend the first meeting, the litigation expenses incurred by the parties shall be left to them.
(13) If the parties reach an agreement at the end of the mediation activity, the mediation fee shall be covered equally by the parties, unless otherwise agreed in accordance with the Second Part of the Mediation Fee Tariff annexed to the Mediation Minimum Wage Tariff. In this case, the fee shall not be less than the two-hour wage determined in the First Part of the Tariff. In the event that the parties agree in the negotiations held for reinstatement, the sum of the compensation to be paid to the worker in the event that he/she is not reinstated and the wage and other rights to be paid for the period he/she is not employed shall be accepted as the amount agreed upon in accordance with the Second Part of the Tariff in determining the fee to be paid to the mediator. (14) In cases where the parties cannot be reached at the end of the mediation activity, the meeting cannot be held because the parties do not attend, or the parties cannot reach an agreement after the negotiations last less than two hours, the two-hour wage shall be paid from the budget of the Ministry of Justice in accordance with the First Part of the Tariff. If the parties cannot reach an agreement at the end of the negotiations that last more than two hours, the fee for the part exceeding two hours shall be covered equally by the parties according to Part One of the Tariff, unless otherwise agreed. The mediation fee paid from the budget of the Ministry of Justice and covered by the parties shall be considered as litigation expenses.

(15) In the event of a primary employer-subcontractor relationship, when a mediator is applied to with a request for reinstatement, in order for the agreement to be reached, the employers must participate in the mediation negotiations together and their wills must be in harmony.

(16) The necessary expenses to be incurred by the mediation office pursuant to this article shall be covered from the budget of the Ministry of Justice; in the event that an agreement is reached at the end of the mediation activity, to be paid by the parties in accordance with the agreement, and in the event that an agreement cannot be reached, to be collected from the party that will be found to be at fault in the future.

(17) The statute of limitations shall cease during the period from the application to the mediation office to the date the last report is prepared, and the limitation period shall not run.
(18) The parties may participate in the mediation meetings in person, through their legal representatives or lawyers. The employee authorized by the employer in writing may also represent the employer in the meetings and sign the final report.

(19) Unless otherwise agreed by the parties, the mediation meetings shall be conducted within the jurisdiction of the justice commission of the first instance court of the judiciary to which the office appointing the mediator is affiliated.

(20) Journalists, as regulated in the Law on the Regulation of Relations between Employees and Employers in the Press Profession, dated 13/6/1952 and numbered 5953, and seafarers, as regulated in the Maritime Labor Law, dated 20/4/1967 and numbered 854, shall be deemed workers within the scope of this article.

(21) In cases not covered by this article, the provisions of the Law on Mediation in Legal Disputes, dated 7/6/2012 and numbered 6325 shall apply to the extent appropriate to their nature.

(22) The procedure for applying to mediation, the assignment of the mediator and other issues regarding mediation meetings are determined by the regulation put into effect by the Ministry of Justice.
Article 3 of the Law on mediation will enter into force on 01.01.2018.
The articles of the law have just entered into force, and we will follow the developments and problems that will occur in practice, and when a sufficient opinion is reached about Compulsory Mediation, the current practice and comments will be conveyed to you through an information note.

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