1) Executive Summary
Mediation in Türkiye is a court-connected yet party-driven dispute-resolution mechanism grounded in voluntariness, confidentiality, and party autonomy. It is governed primarily by the Law on Mediation in Civil Disputes (Law No. 6325, “HUAK”) and its Regulation, with mandatory-gateway regimes introduced for specific subject matters by subsequent statutes (notably in labor, commercial, consumer, lease and certain property disputes). Properly used, mediation delivers fast, enforceable outcomes at a fraction of litigation cost and time, while preserving relationships.
2) Legal Framework & Architecture
- Primary Source: Law No. 6325 (HUAK) and the Mediation Regulation (Ministry of Justice).
- Institutional Backbone: The Directorate of Mediation within the Ministry of Justice maintains the National Mediator Registry, oversees ethics, training, and complaints, and supports courthouse-based Mediation Bureaus (Arabuluculuk Büroları).
- Judicial Interface: Courts and public prosecutors’ offices (for civil-law aspects) interact with mediation through stay/referral mechanisms, cost sanctions for unjustified absence in mandatory regimes, and enforceability annotations.
3) What Disputes Can Be Mediated?
- Civil and Commercial Disputes: All private-law disputes that parties can freely dispose of (claims about money, performance, damages, contractual matters, partnership/shareholder issues, construction, IP licensing/royalties, agency/distribution, etc.).
- Non-Arbitrable/Non-Mediable Areas: Matters tied to status or strict public order (e.g., certain family-status issues) are outside scope. Ancillary financial claims (compensation, alimony arrears, property divisions with dispositive nature) can often be mediated.
- Criminal-law note: Criminal “conciliation/mediation” (uzlaştırma) is a different procedure under the Criminal Procedure Code; this paper focuses on civil/commercial mediation.
4) Core Principles That Shape Strategy
- Voluntariness & Self-Determination: Parties choose to settle, and shape both process and outcome.
- Impartiality & Independence: Mediators must disclose conflicts, avoid partiality, and withdraw when neutrality is compromised.
- Confidentiality: All statements, offers, and documents prepared solely for mediation are confidential. Mediators and participants cannot be compelled to testify about them, save for narrow public-order exceptions (e.g., imminent threats).
- Equality of Parties & Due Process: Each side must have a fair chance to present views; mediators manage imbalances.
- Good Faith: Parties are expected to participate honestly and constructively.
5) Mandatory Mediation Gateways (Pre-Action Requirements)
Türkiye has progressively introduced mandatory pre-action mediation for certain disputes. Filing a lawsuit without completing the designated mediation step leads to dismissal on procedural grounds:
- Employment (Labor) Disputes: Employee receivables/compensation, reinstatement claims, and akin disputes typically require pre-action mediation.
- Commercial Disputes: Monetary claims between merchants and disputes deemed “commercial” (e.g., TCC-related) often pass through mandatory mediation.
- Consumer Disputes: Many consumer claims must first go to mediation (thresholds and carve-outs apply).
- Leases & Property-Adjacent Matters: Following recent reforms, many rental disputes and some co-ownership/condominium or construction-from-land share matters are also subject to mandatory mediation.
Timing: Mandatory mediations run on short statutory timetables (measured in weeks), ensuring swift triage. The mediator organizes an initial meeting promptly; statutes typically allow a short extension for complexity. Failure by one side to attend without valid excuse can trigger adverse cost consequences, even if that party later prevails in court.
6) How the Process Works (Step-by-Step)
A) Intake & Appointment
- Application: Parties apply via a Mediation Bureau (or jointly appoint a mediator from the Registry). In mandatory regimes, the bureau appoints a mediator on a rotational basis unless parties agree on one.
- Preliminary Contact: The mediator contacts the parties/counsel, confirms availability, and schedules the initial session (in person or online). Engagement letters/terms of reference are clarified.
B) Case-Management & Protocol
- Ground Rules: The mediator sets the agenda, confidentiality boundaries, caucus rules, and document exchange logistics.
- Authority & Representatives: Counsel should ensure that settlement authority is either present or swiftly reachable. Corporate parties often field both legal and commercial decision-makers.
C) Mediation Sessions
- Joint Opening: Issue framing, interests vs. positions, and settlement structure mapping.
- Caucuses: Shuttle diplomacy to test risk, explore BATNA/WATNA, discuss numbers, terms, sequencing, and non-monetary value (e.g., supply continuity, IP cross-licenses, exclusivity windows, publicity terms).
- Documentation: The mediator may request concise briefs (factual background, claims/defenses, damages models) to accelerate negotiations.
D) Settlement Agreement
- Form & Content: Clear parties/affiliates, scope of release, payment terms (amounts, schedule, currency), security (guarantees, letters of guarantee, pledges), tax/VAT allocation, confidentiality, non-disparagement, warranties, termination for non-payment, governing law/jurisdiction for follow-on issues, and enforcement pathway.
- Enforceability: Two main paths exist:
- Court Annotation: Filing for an enforceability annotation (usually before the competent civil court) transforms the settlement into a document executable like a court judgment.
- Direct Enforceability in Stipulated Cases: For certain settlements that meet HUAK’s formal conditions (e.g., signed by parties and their lawyers in the presence of the mediator), the agreement can carry judgment-like enforceability without further annotation.
- Non-Settlement: If no agreement is reached, the mediator issues a final report (often required to open the courtroom door in mandatory regimes).
E) Effects on Limitation Periods
- Suspension/Interruption: Application to mediation suspends limitation and peremptory periods for the duration of the process. When mediation ends, clocks resume, protecting parties who first attempted ADR.
7) Costs, Fees & Sanctions
- Tariff-Based Fees: Mediator fees follow the official tariff published annually; parties are free to agree otherwise in voluntary cases. In mandatory regimes, the statute/regulation prescribes allocation methods.
- Allocation: By agreement or, absent agreement, typically shared.
- Sanctions for No-Show: Unjustified refusal to attend the first meeting in mandatory mediation can result in adverse costs, including attorney fees, even if that party later wins the lawsuit.
- Cost-Efficiency: Compared with multi-year litigation (discovery, experts, appeals), mediation offers speed, budget predictability, and tighter control over publicity.
8) Role of the Mediator & Ethics
- Qualifications: Mediators are law graduates with practice experience who complete certified training and pass examinations before entry to the Registry.
- Ethical Duties: Independence, impartiality, confidentiality, and competence. Mediators must disclose any conflicts and maintain proper record-keeping (appointment, notices, minutes, closure reports).
- Process Design: Skilled mediators adapt formats—facilitative for interest-based bargaining, evaluative reality-testing when requested, or hybrid approaches for complex commercial cases.
9) Drafting Mediation-Ready Contracts (For Transactional Lawyers)
Embed a mediation clause to channel disputes to a structured process before arbitration/litigation:
- Escalation Ladder: negotiation → mediation (time-boxed) → arbitration/courts.
- Seat & Language: Identify governing law (Turkish law), mediation venue (e.g., İstanbul), mediation language(s), and platform (in-person/online).
- Institutional Rules: Optionally refer to institutional mediation centers or HUAK default rules.
- Interim Relief: Clarify that seeking precautionary measures from courts does not waive mediation.
- Confidentiality/Privilege: Re-affirm statutory protection and carve-outs (e.g., compliance with binding public-law duties).
- Multi-Party Joinder: Anticipate consortia, subcontractors, insurers (D&O, professional liability), guarantors.
10) Enforcement & Cross-Border Considerations
- In Türkiye: Properly executed mediation settlements are enforceable like court judgments once the statutory pathway is met (annotation or direct enforceability where HUAK conditions are satisfied).
- Cross-Border Assets: Where counterparties or assets are abroad, counsel should coordinate with foreign counsel to secure recognition/exequatur or structure payments (escrows, bank guarantees) that reduce enforcement risk.
11) Practical Playbook for Counsel
Before the Session
- Build a decision tree with probabilities, legal costs, timing, and enforcement risk.
- Prepare a settlement term sheet with fall-back options (price bands, payment schedules, security packages, IP or supply concessions).
- Identify tax and accounting effects early.
During the Session
- Use anchoring judiciously, back proposals with data (expert quotes, market benchmarks).
- Manage information exchange: share enough to persuade, protect what must remain privileged.
- Keep momentum—ask for package deals (money + performance + future safeguards).
After Agreement
- Draft with execution in mind: clear maturities, default interest, acceleration, security (pledge, mortgage, assignment), and dispute clause for interpreting the settlement itself.
- Choose the right enforceability route under HUAK and file promptly if an annotation is needed.
- Implement compliance calendars for staged obligations.
12) Advantages & Limits
Advantages
- Speed (weeks, not years), confidentiality, relationship preservation, creative outcomes, and enforceability options.
- Reduced reputational exposure vs. public trials, especially in consumer and brand-sensitive contexts.
Limits
- Requires minimal good faith; power imbalances need careful mediator case-management.
- Not suited to pure precedent-setting or urgent injunctive relief (though interim measures can be sought in parallel).
- Public-order or status-based disputes remain outside scope.
13) Model Mediation Clause (Turkish-Law Ready, Plain English)
“Any dispute arising out of or in connection with this Agreement shall first be submitted to mediation under Turkish Law No. 6325. The parties shall apply to the Mediation Bureau at the Istanbul Courthouse (or agree on a registered mediator) within 10 days after written notice of dispute. The mediation shall be completed within 30 days unless extended by written agreement. Statements and documents prepared solely for mediation are confidential. Either party may seek interim measures from competent courts without waiving mediation. If a settlement is reached, the parties agree to execute a written settlement before the mediator; where applicable under Law No. 6325, the parties and their attorneys shall sign the settlement to obtain direct enforceability, or the parties shall seek a court enforceability annotation. If no settlement is reached, the parties may proceed to [arbitration/courts] as specified below.”
(Customize venue, timing, language, institution, and downstream forum.)
14) Takeaways for Clients
- Do the math first: compare expected litigation value vs. a mediated package you can live with.
- Come prepared with documents, numbers, and decision-makers.
- Use the statute: mandatory regimes force both sides to the table quickly; leverage cost sanctions against no-show behavior.
- Lock enforceability: ensure the settlement instrument satisfies HUAK formalities so you can execute like a judgment if the other side defaults.
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