As an alternative dispute resolution method, mediation is becoming increasingly popular in Turkey, gaining recognition and growing in effectiveness. However, there are still significant gaps in public understanding regarding mediation, as evidenced by situations where:
- People contacted by a mediator may assume it’s a scam due to a lack of knowledge.
- Both individuals and companies, unfamiliar with the process, may shy away and immediately lean towards non-settlement.
- Issues that could be resolved quickly, practically, and inexpensively—without damaging relationships—are often taken to court simply due to a lack of awareness about mediation.
For these reasons, we’ve written this short guide to address basic confusion for individuals and companies involved in mediation, as well as to contribute to increasing the visibility and adoption of mediation. To keep this article easily readable, we’ll avoid technical legal details as much as possible, providing helpful legal details as footnotes. In clear and straightforward language, we’ll address the following questions under separate headings:
- What is mediation?
- Who is the mediator?
- What is the outcome of the mediation process?
- Are mediation and conciliation the same?
- What are the powers of a mediator?
- How long does mediation take? Does it waste time?
- Is mediation paid? How much does it cost?
- Is mediation mandatory?
- How does one apply for mediation?
- A mediator contacted me; what should I do?
- Can an agent or representative attend a mediation meeting?
- Should I participate in the mediation process with a lawyer?
- I’m unaware of my rights; will the mediator protect me if the other party tries to deceive me?
- Can the mediator make a decision on the dispute that I disagree with?
- Can anything I say in mediation be used against me in court?
- Do we have to agree in mediation? What happens if we don’t?
- Can mediation be conducted for compensation disputes arising from workplace accidents?
Let’s provide brief answers to these questions:
1. What is Mediation?
Mediation is an alternative dispute resolution method. Through mediation, parties are encouraged to find amicable solutions to matters over which they have the freedom to negotiate.
According to the legal definition, mediation is a dispute resolution method involving a neutral third party trained in systematic techniques who brings the parties together to communicate, facilitates mutual understanding, and helps them generate their own solutions. If the parties are unable to reach a solution, the mediator may also propose a solution. This process is conducted with the involvement of a qualified, impartial, and independent third person.
For example, disputes that the parties can resolve themselves—such as severance pay, wages, material compensation, moral compensation, and debt-credit issues—can be addressed in mediation. Both individuals and companies can resort to mediation for a wide variety of legal disputes.
However, issues that are not freely negotiable by the parties are not suitable for mediation. For example, property transfers cannot occur solely through the parties’ willingness; the relevant public authority’s action is required. Thus, property transfers cannot be conducted through mediation. Similarly, disputes involving allegations of domestic violence are also unsuitable for mediation.
Mediation is fundamentally conducted based on the following principles:
- Voluntariness / Autonomy: The mediation process depends on the parties’ willingness and consent to participate and to continue the process.
- Equality: In mediation, the parties are considered equals. Generally, the mediator is also obligated to treat all parties equally.
- Confidentiality: Unless otherwise agreed upon, the mediator, the parties, and other participants in the mediation process are required to keep confidential any information, documents, or records presented or obtained during the mediation process. A person who violates this confidentiality rule and harms a legally protected interest may face up to six months of imprisonment if a complaint is filed.
- Non-Use of Statements and Documents: Statements made and documents obtained during mediation cannot be used in subsequent court or arbitration proceedings. However, evidence that may be presented in a civil or arbitration case does not become inadmissible solely because it was also introduced in mediation.
- Neutrality and Independence: The mediator is impartial and independent.
- Control of the Process Rests with the Parties: The parties initiate the mediation process, which continues as long as they are willing to participate, and the parties determine the outcome. The mediator cannot compel the parties to make specific decisions or resolve the dispute by imposing a ruling.
2. Who is the Mediator?
A mediator is a person who, after meeting the required qualifications, is registered with the Mediation Registry by the Ministry of Justice and conducts mediation activities in this capacity.
The mediator is not a party to the dispute. As a rule, the mediator must treat the parties equally. While conducting mediation, the mediator is obliged to remain impartial and must not display behavior that could lead to doubts about their neutrality. Moreover, after acting as a mediator in a dispute, they cannot subsequently represent one of the parties as an attorney in a related lawsuit.
3. What Happens After the Mediation Process?
The mediation process concludes in the following situations:
a) The parties reach an agreement.
b) After consulting the parties, the mediator determines that further efforts for mediation are unnecessary.
c) One of the parties informs the other party or the mediator of their withdrawal from the mediation.
d) The parties mutually agree to terminate the mediation process.
e) It is determined that the dispute is unsuitable for mediation.
After the mediation process ends, the mediator documents whether the parties have reached an agreement or the outcome of the process. If an agreement is reached, the scope of this agreement is defined by the parties, and the mediator records the agreement. This document is then signed by the parties and the mediator.
One of the most significant outcomes of mediation is that if the parties reach an agreement, they cannot later file a lawsuit regarding the agreed-upon matters. For instance, if creditor and debtor companies agree on a payment of USD 100,000 during mediation, and one party later files a lawsuit claiming this amount was incorrect, the court will typically dismiss this case as a formal agreement was made in the presence of a mediator.
The agreement document prepared at the end of mediation holds official status. If the agreement is not fulfilled, such as if an employer agrees to make a payment but later fails to do so, the other party can initiate an enforcement procedure based on the mediation agreement, treating it as if they possess a court judgment, and may proceed with collection and enforcement, including potential asset seizure, if conditions allow.
Note that to initiate enforcement actions based on the mediation record, it is necessary to first apply to the court for an “enforceability endorsement.” This is usually a quick and straightforward process. Once court-approved, the mediation agreement is considered a legal document akin to a court decision. Additionally, a mediation agreement signed by the parties, their representatives, and the mediator can be treated as a legal document without needing further court approval.
4. Are Mediation and Reconciliation the Same? What is the Difference?
The terms “mediation” and “reconciliation” are often confused due to their similar meanings, but they represent entirely different alternative dispute resolution methods in the legal framework.
Reconciliation pertains to criminal law and is regulated under the Criminal Procedure Code. Broadly, reconciliation aims to resolve a criminal matter by facilitating an agreement between the accused and the victim, thus concluding an investigation or prosecution.
Mediation, on the other hand, falls under the Law on Mediation in Civil Disputes and is an alternative dispute resolution process in civil matters.
To clarify, reconciliation involves criminal matters, while mediation addresses issues such as compensation or debt claims between parties.
Examples:
- If Ahmet insults Ayşe, and Ayşe files a complaint, a reconciliation process may be initiated during the investigation. A reconciler will work with the parties to reach a peaceful resolution, benefiting both the individuals and society while reducing the judicial workload.
- In a case where Ayşe is an employer and Ahmet is an employee, and there is a dispute over severance pay or overtime compensation, this issue can be resolved through mediation.
5.What are the Powers of a Mediator?
A mediator does not make decisions like a judge or arbitrator. Generally, they do not propose solutions or legally direct the parties. Instead, they facilitate communication and create a constructive environment for parties to formulate their agreement terms. Mediators act as facilitators, guiding the process to remove obstacles and encourage agreement.
To perform these functions, mediators have certain legal powers. For example, they can meet and communicate with each party separately or together. This broad communication power is particularly helpful; if one party feels uncomfortable expressing themselves openly in front of the other or if tensions rise, the mediator can hold separate discussions with each party to reopen communication channels. The mediator may even decide to continue the negotiations separately without bringing the parties together if necessary.
While a mediator typically cannot propose solutions (e.g., if one party demands 30,000 TL and the other offers 10,000 TL, the mediator cannot suggest a middle ground like 20,000 TL), an exception occurs if it becomes evident that the parties cannot reach a solution. At this point, the mediator may propose a solution based on mutual interests, such as suggesting a 20,000 TL compromise. If both parties reject this offer, the mediator may then conclude the mediation process.
A mediator may terminate the mediation if, after consulting with the parties, they determine that further efforts are unnecessary or if the dispute is unsuitable for mediation.
Mediators are entitled to fees and expenses for their services.
6. How Long Does Mediation Take? Does It Cause Delays?
In Turkey, the length of trials is often a cause for concern, with cases sometimes taking years to resolve. For example, an unfair dismissal case might take 2-3 years to conclude, making the initial goal of reinstatement less meaningful. Similarly, a company pursuing a commercial claim may face financial hardship even if it wins the case after 4-5 years.
This situation raises concerns about whether mandatory mediation might prolong access to justice.
According to legal regulations:
- In employment disputes, the mediator must conclude the application within three weeks of assignment, with a one-week extension permitted in exceptional cases.
- In commercial disputes, the mediator has six weeks, with a maximum two-week extension if necessary.,
Thus, in employment disputes, mandatory mediation can take up to four weeks, and in commercial disputes, up to eight weeks—a relatively short period compared to years of potential litigation. Parties may also terminate the mediation process quickly, whether an agreement is reached or not. While applying to mediation is mandatory, continuing the mediation process is a matter of joint decision by the parties.
Given the lengthy nature of court proceedings in Turkey, dedicating a few weeks to try resolving a dispute through amicable settlement is unlikely to be viewed as a waste of time. On the contrary, using this time efficiently and working towards a reasonable compromise can be beneficial.
7. Is Mediation Free? How Much Does It Cost?
Mediation is a paid service. The minimum rates for these fees are set annually by the Ministry of Justice’s Mediation Minimum Fee Tariff. While fees can be agreed upon above these minimums, they cannot be set below them.
No fees are paid upon applying for mandatory mediation. If the mediation concludes with an agreement, the fee, as determined by the minimum tariff, is generally shared equally between the parties, unless they agree otherwise. For instance, one party may cover the entire fee, or an unequal split can be agreed upon.
If no agreement is reached, the two-hour fee specified in the tariff is covered by the Ministry of Justice’s budget. If mediation sessions exceed two hours without reaching an agreement, the cost beyond the two-hour mark, unless agreed otherwise, is shared equally between the parties. The mediation fees paid by the Ministry and the parties are considered litigation expenses, meaning they are subject to collection based on the case’s acceptance or rejection outcome.
8. Is it Mandatory to Apply to a Mediator?
In general terms, mediation is a voluntary activity. It is a method that parties choose to pursue based on their free will. However, in our legal system, certain types of disputes require parties to apply to a mediator before filing a lawsuit. In such cases, mediation is considered a “prerequisite for litigation.” If mediation is a prerequisite in a dispute, a lawsuit filed without meeting this requirement will be dismissed on procedural grounds. Therefore, it is crucial to evaluate whether mediation is a prerequisite in a dispute before proceeding.
As of the date of writing this article, mediation is a prerequisite for some disputes such as business, commercial and consumer disputes. The legislator is increasingly inclined to make mediation a prerequisite in various other areas, aiming to resolve more disputes through amicable means and reduce the judicial workload.
To briefly examine the existing mandatory mediation regulations:
In labor disputes, mandatory mediation is defined as follows: In lawsuits arising from claims and compensation based on individual or collective labor contracts, as well as in cases involving reinstatement requests, it is required to apply to a mediator before filing a lawsuit.
Conversely, mediation is not a prerequisite for lawsuits involving compensation claims for occupational accidents or diseases and related matters of determination, objection, and recourse.
In commercial disputes, mediation is defined as follows: In commercial lawsuits involving monetary claims for debts and compensation, it is a prerequisite to apply to a mediator before filing a lawsuit.
In consumer disputes, mediation is defined as follows: In disputes heard in consumer courts, it is mandatory to apply to a mediator before filing a lawsuit. However, certain consumer disputes, primarily those falling under the jurisdiction of consumer arbitration boards, are excluded from the scope of mandatory mediation.
In cases where mediation is a prerequisite, a solution has been developed to ensure the participation of the opposing party in the mediation process. Although participation of the opposing party (the party against whom mediation is sought as a prerequisite) in the mediation process is not mandatory, failing to participate can result in certain sanctions.
If one party fails to attend the initial meeting without a valid excuse, resulting in the termination of the mediation process, the non-attending party will be held responsible for all legal expenses, even if partially or entirely successful in the lawsuit. Moreover, no attorney fees will be awarded in favor of this party. If both parties fail to attend the initial meeting, each party will bear its own legal costs in any subsequent lawsuit.
9. How to Apply to a Mediator
The application is made to the mediation office located at the court authorized for the dispute’s subject matter. In places where a mediation office has not been established, applications can be submitted to the assigned clerical department. The mediator is appointed from the list provided to the commission heads by the office. However, if the parties agree on a specific mediator from the list, that mediator will be appointed.
Practically speaking, if mediation is a prerequisite, you can go to the mediation office within the courthouse to file your application. The office will then assign a mediator for the dispute. There is no initial fee for this application. The details of the mediation fee have been explained above.
When applying for mandatory mediation, it is important to apply under the correct dispute type and to ensure that the office you are applying to is authorized. The term “authority” here is a legal definition referring to the geographical jurisdiction. For example, in a dispute under the jurisdiction of Istanbul Bakırköy courts, applying to Istanbul Anadolu Mediation Office and having a mediator appointed from there may lead to the opposing party objecting on jurisdictional grounds.
10. The Mediator Has Contacted Me, What Should I Do? / Our Company Was Contacted by a Mediator, What Should We Do?
As mentioned earlier, since mediation is relatively new in Turkey:
- Individuals contacted by a mediator, unaware of the process, may suspect the mediator of fraud.
- Individuals and companies unfamiliar with the process may be hesitant to settle.
- Matters that could be resolved quickly, efficiently, and inexpensively through mediation, without damaging relationships, are sometimes turned into lawsuits due to unfamiliarity with this method.
Therefore, we offer some important advice for individuals and companies who are parties to mediation:
After a mediation application is filed against you, the mediator will typically introduce themselves to you over the phone. Since there is no official notification at this stage, you may feel hesitant to trust the mediator and share information. In this case, you can ask the mediator for their name and registration number, and verify their details by visiting the “Current List of Mediators” page on the website of the Directorate of Mediation at https://adb.adalet.gov.tr/.
Mediation is not a process to be feared. You hold the control; you set the terms of the agreement, and if you don’t agree, the opposing party may proceed with a lawsuit. We recommend that you try to reach an agreement based on mutual interests instead of keeping a distance.
When a mediator contacts you, the preparation phase of the mediation process is still ongoing. During this phase, the mediator gathers information about the applicant’s demands and asks for your viewpoint on these demands. The mediator is neutral and not the opposing party’s lawyer. They cannot use your responses against you and will only convey the information you approve to the other party. Thus, there is no harm in providing the mediator with information and documents to help them understand the matter.
Following the preparation phase, the mediator will set a date for a session, which is usually held in person. The mediator will inform you of the meeting venue. To make the meeting productive, it is advisable to review the opposing party’s demands beforehand and establish a basic response to these demands. For instance, if you own a company and a former employee has filed a mediation application against your company, it will be helpful to inquire about the employee’s specific claims (e.g., severance pay, overtime pay) beforehand. Having this information can help you evaluate your position and determine the highest amount you are willing to accept in a settlement. Preparing in this way can make the meeting more productive and avoid wasting time and resources.
We suggest entering the mediation process with minimal rigid boundaries. Often, we see parties unable to think rationally due to emotional tension. For example, suppose the applicant could receive 100,000 TL in a lawsuit but is willing to settle for 40,000 TL. In this situation, it may benefit both sides to settle in mediation. However, if you react emotionally, thinking, “I’ve done favors in the past but received nothing in return; I won’t pay a dime,” you may waste time and energy on a prolonged legal process, ultimately incurring financial losses. We advise a level-headed and pragmatic approach to mediation, as the mediator will focus on the parties’ interests rather than emotions.
Remember, mediation is a confidential process. Parties can speak freely, express their feelings, and share openly within respectful boundaries. Open communication can sometimes ease tensions, helping parties reach an agreement after expressing their concerns. Thus, feel free to communicate openly on both financial and personal matters.
Bringing relevant documents that support your position to the mediation session will facilitate the process.
11. Can a Lawyer or Representative Attend the Mediation Session?
Parties may participate in mediation sessions in person, through their legal representatives, or attorneys. With the consent of all parties, experts who may contribute to the resolution of the dispute can also attend the sessions.
An attorney needs special authorization in the power of attorney to represent a party in mediation. Similarly, companies may send an employee as their representative.
To this end, the company’s authorized signatory (or signatories) should prepare an authorization document indicating that this employee is authorized for the mediation activity, and this document must be presented to the mediator.
12. Should I Attend the Mediation Process With A Lawyer?
Attending the mediation process with a lawyer or legal representative is a legal right, although it is not legally required. Parties can personally follow the mediation process. Although mediation is defined as an “interest-based rather than rights-based” process, the dispute at hand still has a legal nature. To determine what is in your best interest, you need to have an understanding of the legal aspects of the dispute.
Thus, the following aspects may benefit from the support of a lawyer:
- The legal aspects of the dispute,
- The potential outcomes in a possible court case,
- How reasonable the opposing party’s demands and offers are,
- The evidentiary value of documents and proof related to the dispute.
For example, if the opposing party says during the mediation meeting, “If we don’t agree, we will definitely win this case with the evidence we have and collect 100,000 USD from you,” knowing the accuracy of these claims will help you determine which settlement terms are in your best interest.
Similarly, let’s assume you approached a mediator regarding an employer, and you believe you have a strong chance of winning severance and notice pay if you file a lawsuit. If the employer claims, “We terminated you for just cause; you have no right to severance and notice pay, on the contrary, we suffered a loss, and if you file a lawsuit, we’ll file one to recover our 10,000 TL loss,” consulting a lawyer on the accuracy of this claim would be highly beneficial. This way, you will not feel compelled to agree to amounts far below your rights, nor will you be tempted to pursue a case with a high risk of losing.
We would like to emphasize that the lawyer does not necessarily have to personally attend the mediation process for you to receive legal support. You can follow the process yourself and consult your lawyer by phone during negotiations for any points you may find unclear.
13. I Don’t Know My Rights. If the Other Party Tries to Mislead Me, Will the Mediator Protect Me?
The mediator cannot provide legal advice to the parties during the mediation process. If the mediator believes that one party does not understand the process or the outcomes of the agreement reached at the end of the process, they can make explanations to clarify the process and outcomes without compromising their neutrality. Furthermore, if deemed necessary, they may recommend that the party seek legal assistance.
To clarify, the mediator cannot give advice or make suggestions such as “This document won’t serve as evidence, you’ll likely win the case, the worker’s entitlement here should be at least 50,000 TL, I think it would be good to settle for 30,000 TL.”
However, the mediator will provide the necessary explanations regarding the mediation activity and its outcomes to the parties. As an exception, if one party is clearly at a disadvantage or deeply uninformed about the legal aspects of the dispute, the mediator can recommend that this party seek legal assistance. However, even in this scenario, the mediator does not provide direct legal support or advice but only suggests seeking legal assistance. If the party then declares they do not feel the need for legal support, the mediator cannot force the party to obtain it.
14. Can the Mediator Make a Decision About the Dispute That I Do not Agree with?
The mediator is neither a judge nor an arbitrator. They cannot make a decision on the dispute or bind it to a ruling. The mediator cannot compel the parties to accept a proposed solution or series of solutions. If an agreement is reached through mediation, the terms of this agreement are determined by the parties.
15. Can the Statements I Make During Mediation be Used Against Me In Court?
Unless otherwise agreed by the parties, both the mediator and the parties, as well as other participants in the mediation process, are obligated to keep confidential the information, documents, and other records presented or obtained during the mediation process.
A person who violates the confidentiality rule and causes harm to a legally protected interest of another person may be sentenced to up to six months in prison if a complaint is filed.
The parties and other participants in the mediation process cannot use statements made and documents obtained during the mediation in court and arbitration proceedings. However, evidence that can be submitted in a civil lawsuit or arbitration does not become inadmissible merely because it was presented in mediation.
As shown, mediation is a confidential process. You can express yourself freely here, submitting statements and documents without worrying about them being used against you later.
This rule is an important factor distinguishing mediation from other legal processes. For instance, if you send a formal notice via notary to the other party, meet with them directly, or speak during a court proceeding, everything you say and every document you present can later be used against you. This may prevent you from expressing yourself freely.
For instance, saying “I’ve made mistakes in this matter too; some of the goods I sent were defective, so let’s settle with a discount” may be challenging. The other party could reject the settlement and later use these statements against you. However, in mediation, you can freely evaluate the issue from all angles and express yourself unfiltered; if no agreement is reached and you later pursue litigation, these statements and documents cannot be used against you.
In practice, some parties opt for voluntary mediation solely to express themselves freely under the confidentiality rule and avoid straining relations with formal notices. In such cases, mutual formal notices or legal processes inevitably position the parties as “100% in the right and the opposing side 100% in the wrong.” This hinders open communication and makes it more challenging to achieve genuine, interest-based solutions.
Through mediation, it is easier to evaluate the issue freely, identify the mutual interests of the parties, resolve the dispute, and even maintain the relationship between the parties after the resolution.
16. Should We Reach an Agreement in Mediation? What Happens If We Don’t?
Mediation is an alternative dispute resolution method that concludes based on the parties’ consent. Whether or not to reach an agreement is at the discretion of the parties. However, if no agreement is reached through this alternative method, it is likely that the party whose demands are not met will turn to legal proceedings.
If mediation was sought as a prerequisite for a lawsuit, the applicant is likely to file a case if no agreement is reached (we refrain from stating “the applicant will file a lawsuit” definitively because, in some cases, applicants decide against legal action based on the information and documents obtained during the mediation process; or, due to factors like the small amount of the claim or lengthy legal proceedings, they may not file a lawsuit at all).
Our recommendation is to seek legal support if necessary, learn about the possible outcomes of not reaching an agreement in mediation and potential legal processes, and, considering these results, try to reach an agreement during the mediation process if a mutually beneficial solution is achievable.
We advise against a purely emotional approach that deviates from rationality. For applicants, as mediators, we often reference the saying, “a bird in the hand is worth two in the bush.” For example, making unrealistic demands out of a desire for revenge, refusing reasonable offers, and then spending time and money on lengthy lawsuits often leads to further grievances. When possible, reaching a reasonable agreement to settle the dispute amicably is a fast, cost-effective, and practical solution.
17. Can Mediation Be Used in Compensation Disputes Arising from Workplace Accidents?
Mediation is not a mandatory prerequisite for claims related to material and moral compensation arising from workplace accidents or occupational illnesses, nor for related determinations, objections, and recourse claims. Although mediation is not required in lawsuits stemming from workplace accidents and occupational illnesses, these disputes can still be resolved through voluntary mediation. For instance, if a workplace accident causing injury occurs, the worker and employer can resolve their material and moral compensation disputes through voluntary mediation.
Some key benefits of resolving such disputes through mediation include avoiding a lengthy trial process, which typically involves medical reports, fault reports, expert reports, examination of Social Security Institution (SGK) records, and witness testimonies. Mediation enables a much faster resolution, allowing a worker who has suffered a workplace accident to quickly receive their compensation. Additionally, if the employer fails to make the payment they promised during mediation, the worker can initiate a direct collection process using the mediation records, following a simple procedure.
For employers, there may be a reluctance to make payments in workplace accident cases due to concerns that the worker could still sue even after agreeing to a payment. However, once a dispute is resolved through mediation, it generally cannot be brought to court again. If a dispute has been settled via mediation, the court will dismiss any future lawsuits on the matter. Therefore, for employers, mediation offers a formal settlement method without hidden risks in workplace accident and occupational illness disputes.
Note: For the sources and legal basis of the article, please see the Turkish version on our website.
Disclaimer: The information and opinions on this page are for general information and academic contribution purposes. It may not reflect the views of Otto Law and Mediation. Due to the fact that law is a dynamic field, the information and opinions on the site may be out of date. The articles on the site may not reflect the prevailing doctrine or common judicial practices in that field and may contain the author’s own legal convictions. The information and legal opinions on this site are not legal advice and these contents are not intended to be legal advice. It is recommended to seek professional legal support for specific cases. Otto Law and Mediation or the author of the relevant article are not responsible for the consequences of applying the information and opinions on the site to concrete events. We present it to your information.
