MANDATORY MEDIATION IN THE LIGHT OF HIGH COURT DECISIONS IN TURKISH LAW

Abstract

In Turkish Law, referral to mediation prior to bringing an action was made mandatory for labor disputes in 2017, for commercial disputes in 2018 and lastly, for consumer disputes in 2020. In 2018, with Article 18/A added to the Law on Mediation in Civil and Commercial Dispute, a general regulation was made regarding mandatory mediation. In this study, problems related to the decrees issued by the high court following the new legal regulations under question are addressed. To start, an explanation is provided of why we prefer the concept of “mandatory mediation” to that of the concept of “mediation as a cause of action”, the latter of which is the concept used by legislators. After addressing this issue of concept, an overview of the content of new regulations is provided, followed by an examination of the Constitutional Court’s decree on mandatory mediation in labor disputes in cases of rejection of application based on the allegation of contradiction of provisions for mandatory mediation in the constitution. In addition, the decrees of the Court of Appeal and Court of Cassation issued regarding whether referral to mediation is mandatory or not in terms of action for annulment of objection, negative declaratory action, actions having the quality of both consumer disputes and commercial disputes, concentration of actions, and counter-action were reviewed. Lastly, we offer opinions on whether referral to mandatory mediation on these matters is possible or not based on the issued high court decrees.