Mediation Clauses in Commercial Contracts: Drafting and Enforcement in Turkey

Introduction

Mediation clauses in commercial contracts in Turkey are increasingly used by companies seeking to resolve contractual disputes quickly, confidentially and without immediately commencing litigation or arbitration.

A mediation clause is a contractual provision requiring or encouraging the parties to attempt mediation when a dispute arises. It may appear in supply, distribution, franchise, construction, technology, licence, shareholder, joint venture, logistics, insurance, banking, consultancy and international trade agreements.

The clause may establish a simple obligation to meet with a mediator before filing proceedings. More detailed clauses may regulate:

• The disputes covered by mediation;
• The method of initiating the process;
• The mediator-selection procedure;
• The place and language of mediation;
• The time allowed for negotiations;
• Confidentiality;
• Costs;
• Participation by authorised representatives;
• Interim protective measures;
• The relationship between mediation, arbitration and litigation;
• The form and enforceability of any settlement.

A carefully drafted mediation clause may prevent uncertainty when a dispute occurs. It can compel the parties to communicate at an early stage, create a formal timetable and reduce the risk that an otherwise manageable disagreement develops into expensive litigation.

A poorly drafted clause may have the opposite effect. It may create a preliminary dispute concerning whether mediation is compulsory, which mediator should be appointed, how long the parties must negotiate and whether a court or arbitral tribunal may hear the case before the mediation stage is completed.

Turkish mediation is principally governed by Law No. 6325 on Mediation in Civil Disputes. The legislation applies to private-law disputes, including disputes containing a foreign element, where the parties may freely dispose of the subject matter. It regulates confidentiality, voluntary decision-making, mediation documents, settlement agreements and mediation required by law as a condition of action.

Commercial disputes concerning certain monetary and compensation claims are also subject to statutory mandatory mediation under Article 5/A of the Turkish Commercial Code. The Ministry of Justice’s official commercial mediation materials explain that pre-litigation mediation applies to covered commercial disputes concerning payment and compensation.

A contractual mediation clause must therefore be distinguished from statutory mandatory mediation. The parties may voluntarily create a contractual negotiation or mediation step, but they cannot remove, replace or alter a mediation requirement imposed by legislation.

This article explains how mediation clauses in commercial contracts should be drafted and enforced in Turkey, including voluntary and mandatory mediation, multi-tier dispute resolution clauses, commencement notices, mediator selection, time limits, confidentiality, interim measures, arbitration, foreign parties and settlement enforceability.

What Is a Mediation Clause?

A mediation clause is a contractual provision stating that disputes arising from or connected with the contract will be submitted to mediation.

A basic clause may state:

The parties shall attempt to resolve any dispute arising from this agreement through mediation before commencing court or arbitration proceedings.

More sophisticated clauses may establish a multi-stage process:

1. Written notice of dispute;
2. Negotiation between project managers;
3. Escalation to senior management;
4. Mediation;
5. Arbitration or litigation if no settlement is reached.

The clause does not resolve the dispute itself. It creates a procedure that the parties are expected to follow after a disagreement arises.

The commercial purpose is generally to:

• Encourage early communication;
• Preserve business relationships;
• Reduce litigation costs;
• Protect confidentiality;
• Allow technically flexible solutions;
• Create a structured settlement period;
• Avoid immediate escalation.

A mediation clause may be included in:

• Main agreement;
• Framework agreement;
• General terms and conditions;
• Shareholders’ agreement;
• Purchase order;
• Distribution agreement;
• Licence agreement;
• Construction contract;
• Settlement protocol;
• Separate dispute-resolution agreement.

The clause should be incorporated validly into the contractual relationship. A provision hidden in unsigned general terms or referred to only vaguely may produce disputes concerning contractual incorporation.

Mediation Clauses and Freedom of Contract

Turkish private law generally permits commercial parties to determine the terms of their contractual relationship within the limits of mandatory law, public order, morality and personality rights.

This contractual freedom allows parties to agree that they will first attempt negotiation or mediation before pursuing litigation or arbitration.

However, contractual freedom does not permit the parties to:

• Eliminate a statutory mediation requirement;
• Prevent access to courts indefinitely;
• Remove mandatory court jurisdiction through unclear wording;
• Eliminate non-waivable statutory rights;
• Restrict urgent interim protection unlawfully;
• Bind persons who are not parties to the contract;
• Require settlement rather than participation;
• Use an unlawful or impossible procedure.

A mediation clause should therefore create an obligation to participate meaningfully in the process, not an obligation to settle.

The parties remain free to reject proposals and end the mediation without agreement.

Contractual Mediation and Statutory Mandatory Mediation

One of the most important drafting issues is the distinction between:

• Contractually agreed mediation; and
• Mediation required by legislation as a condition of action.

Contractual Mediation

Contractual mediation arises because the parties included a clause in their agreement.

Its scope depends on:

• The wording of the clause;
• The disputes covered;
• The contractual sanctions;
• The dispute-resolution framework;
• The applicable law.

Statutory Mandatory Mediation

Statutory mandatory mediation applies because legislation requires the claimant to apply to mediation before filing a covered action.

Article 18/A of Law No. 6325 regulates procedures where mediation is legally designated as a condition of action. The claimant must obtain the final non-agreement report and comply with the statutory filing rules before proceeding with the lawsuit.

Commercial mandatory mediation generally covers qualifying commercial disputes concerning monetary payment, compensation and specified connected remedies. Official Ministry of Justice materials describe this regime and the application process.

A contractual clause cannot state validly that:

• Statutory mediation is waived;
• A private mediator replaces the courthouse application where the law requires the official process;
• The parties may proceed directly to court despite a statutory condition of action;
• A shorter private process eliminates statutory procedural requirements.

Where both contractual and statutory mediation apply, the parties should determine whether one process can be organised in a way that also satisfies the legal condition of action. This should not be assumed automatically.

Does a Mediation Clause Make Mediation Compulsory?

A properly drafted clause may create a contractual obligation to attempt mediation.

However, the legal consequence of non-compliance depends on:

• The exact wording;
• The applicable law;
• Whether litigation or arbitration follows;
• Whether the clause sets objective conditions;
• Whether the clause is sufficiently certain;
• Whether performance would be futile or impossible.

A clause using the word “may” generally creates an option rather than a strict obligation.

A clause stating that the parties “shall submit the dispute to mediation before commencing proceedings” is more likely to be treated as mandatory at the contractual level.

Even where the clause is mandatory, it does not require the parties to agree. It generally requires them to initiate and participate in the agreed process.

In court litigation, the procedural effect of a purely contractual mediation clause should not be confused with a statutory condition of action. Whether the clause causes dismissal, suspension, a contractual damages claim or another procedural result may require judicial interpretation.

In arbitration, tribunals frequently examine whether pre-arbitration steps are mandatory, whether they were completed and whether non-compliance affects admissibility or jurisdiction. The result depends heavily on the clause wording and arbitration framework.

The safest drafting approach is to define the consequence expressly without attempting to create an unlawful restriction on access to justice.

Mandatory and Optional Wording

The language used in the clause is critical.

Optional Language

An optional clause may state:

The parties may attempt to resolve disputes through mediation.

This encourages mediation but does not clearly require it.

Mandatory Language

A mandatory clause may state:

Before commencing litigation or arbitration, the parties shall attempt in good faith to resolve the dispute through mediation in accordance with this clause.

Mandatory wording should be supported by clear procedural details.

Problematic Language

Vague expressions include:

• “The parties will discuss mediation if necessary.”
• “The dispute should preferably be settled amicably.”
• “The parties shall negotiate for a reasonable time.”
• “Mediation will be used where appropriate.”

Such wording may express an intention without creating a clearly enforceable procedural obligation.

Defining the Scope of the Clause

The clause should specify which disputes are covered.

A narrow clause may cover only:

• Payment disputes;
• Quality disputes;
• Termination claims;
• Specific performance.

A broad clause may cover:

• Any dispute arising from the contract;
• Disputes relating to formation;
• Validity;
• Interpretation;
• Performance;
• Breach;
• Termination;
• Invalidity;
• Non-contractual obligations connected with the relationship.

A broad formulation may state:

Any dispute, controversy or claim arising out of or in connection with this agreement, including its existence, validity, interpretation, performance, breach, termination or consequences, shall first be submitted to mediation.

The parties should consider whether the clause also covers:

• Tort claims;
• Unjust enrichment;
• Confidentiality;
• Intellectual property;
• Related guarantees;
• Affiliates;
• Directors;
• Employees;
• Subcontractors;
• Post-termination obligations.

A clause in one contract may not automatically apply to disputes arising from a different agreement.

Identifying the Parties Covered

Commercial arrangements frequently involve groups of companies.

The contract may be signed by:

• Parent company;
• Subsidiary;
• Distributor;
• Guarantor;
• Affiliate;
• Project company.

A mediation clause generally binds the contractual parties. It does not automatically bind non-signatory affiliates or guarantors.

Where a comprehensive mediation process is intended, the parties should consider including:

• Guarantors;
• Parent companies;
• Joint venture partners;
• Relevant affiliates;
• Subcontractors through separate incorporation clauses.

The settlement itself should also identify all participants whose rights or obligations will be affected.

Commencement of Mediation

A clause should explain how mediation begins.

A clear notice provision may require the initiating party to send a written mediation notice containing:

• Parties’ names;
• Contract reference;
• Description of dispute;
• Main claims;
• Requested remedy;
• Proposed mediator;
• Proposed dates;
• Supporting contact details.

The notice may be delivered by:

• Registered electronic mail;
• Notarial notice;
• Courier;
• Contractual notice address;
• Email;
• Another durable written medium.

The clause should align with the agreement’s general notice provision.

It should state when the mediation period begins:

• On dispatch;
• On receipt;
• On acknowledgement;
• On mediator appointment;
• On the first meeting.

Ambiguity may affect deadlines and the right to commence arbitration or litigation.

Selecting the Mediator

The mediator-selection procedure is one of the most important elements.

The clause may provide that:

• The parties select the mediator jointly;
• One party proposes three candidates and the other selects one;
• A named institution appoints the mediator;
• A specialist mediator is required;
• Co-mediation is used;
• A registered Turkish mediator must be appointed.

A practical clause may state:

The parties shall jointly appoint a mediator registered in the Turkish Mediators’ Register within ten business days after receipt of the mediation notice. If they cannot agree, the mediator shall be appointed by the institution specified in this clause.

The Ministry of Justice maintains an official mediator list that allows parties to verify registration.

The parties may require experience in:

• Construction;
• Insurance;
• Banking;
• Intellectual property;
• Energy;
• International trade;
• Employment;
• Technology.

The requirement should not be so narrow that no suitable mediator can be found.

Avoiding a Deadlock in Appointment

A clause stating only that “the parties shall agree on a mediator” may fail if they cannot agree.

The clause should include a fallback method.

Possible appointment mechanisms include:

• Appointment by a mediation institution;
• Appointment by an agreed bar association or professional body where appropriate;
• Selection from an official register;
• Each party choosing one candidate followed by a random selection;
• A designated neutral appointing authority.

A named individual mediator may become unavailable, conflicted or no longer registered.

The clause should therefore state:

If the named mediator cannot or will not act, a replacement shall be appointed according to the fallback procedure.

Institutional or Ad Hoc Mediation

The parties may choose:

• Institutional mediation; or
• Ad hoc mediation.

Institutional Mediation

An institution may provide:

• Appointment;
• Fee rules;
• Administrative assistance;
• Procedural rules;
• Online facilities;
• Replacement procedures.

Ad Hoc Mediation

The parties and mediator determine the process directly.

Ad hoc mediation may be flexible and cost-effective but requires more detailed drafting.

The clause should identify the institution accurately and incorporate its current rules.

An incorrect institutional name or reference to non-existent rules may create uncertainty.

Place of Mediation

The clause may specify a physical or legal place of mediation.

Examples include:

• Istanbul;
• Ankara;
• The city where the contract is performed;
• Online mediation;
• A location agreed after the dispute.

Unlike arbitration, mediation does not necessarily require a formal legal seat in the same sense. Nevertheless, specifying the location may help determine:

• Meeting logistics;
• Language;
• Travel costs;
• Local counsel;
• Signing procedure.

A cross-border clause may provide:

The mediation shall be conducted online unless the parties agree to meet physically in Istanbul.

Language of Mediation

International commercial contracts should specify the language.

Possible formulations include:

• Turkish;
• English;
• Bilingual mediation;
• Contract language;
• Language selected by the mediator.

The clause should also address:

• Interpretation costs;
• Translation of documents;
• Bilingual settlement agreements;
• Controlling language.

A clause may state:

The mediation shall be conducted in English. The final settlement shall be prepared in Turkish and English, and the Turkish version shall prevail for enforcement in Turkey.

The choice should reflect the parties, evidence and intended enforcement.

Time Limits

A mediation clause should establish a realistic timetable.

It may provide:

• Ten business days to appoint the mediator;
• First meeting within fifteen days;
• Mediation period of thirty days;
• Extension by written agreement;
• Automatic right to commence proceedings after expiry.

A clause may state:

If the dispute has not been settled within thirty days after appointment of the mediator, either party may commence arbitration or litigation, unless the parties agree in writing to extend the period.

The period should not be so short that mediation is meaningless or so long that it blocks urgent relief.

Complex disputes may require:

• Document exchange;
• Expert review;
• Multiple management approvals;
• Insurance participation;
• Board approval.

A rigid seven-day process may be unrealistic.

Good-Faith Participation

Many clauses require the parties to participate in good faith.

Good faith may involve:

• Appointing authorised representatives;
• Attending meetings;
• Providing reasonable information;
• Considering proposals;
• Avoiding intentional delay.

However, good faith should not be defined as an obligation to:

• Make a concession;
• Disclose privileged material;
• Accept a proposal;
• Admit liability;
• Continue negotiations indefinitely.

A useful clause may state:

Each party shall participate through a representative with sufficient authority to negotiate and, subject to any required corporate approval, settle the dispute.

Settlement Authority

Commercial mediation frequently fails because the person attending lacks authority.

The clause may require attendance by:

• Senior executive;
• Board-authorised representative;
• Insurer representative;
• Legal counsel;
• Project manager with settlement authority.

Corporate parties may still require board approval for high-value settlements.

The clause should avoid falsely assuming that every attending representative has unlimited authority.

A balanced provision may require:

Each party shall ensure that a person with authority to conduct meaningful settlement negotiations participates. Any settlement remains subject only to the corporate approvals expressly disclosed before the mediation.

Participation of Lawyers and Experts

The clause may permit or require participation by:

• Lawyers;
• Accountants;
• Engineers;
• Valuation experts;
• Insurance representatives;
• Technical consultants.

Law No. 6325 recognises the role of parties and lawyers in the mediation process, and certain settlement agreements signed by the lawyers and mediator may have direct enforceability consequences in commercial disputes.

A technical dispute may benefit from an expert determination before or during mediation.

The clause may provide:

The parties may jointly appoint a neutral expert to address specified technical or financial issues. The expert’s opinion shall be non-binding unless the parties agree otherwise in writing.

Confidentiality

Mediation clauses should regulate confidentiality even though Turkish mediation law already establishes statutory confidentiality protections.

Law No. 6325 protects mediation communications and restricts the use of specified settlement statements and documents in later proceedings.

The clause may cover:

• Existence of mediation;
• Settlement proposals;
• Statements;
• Expert reports;
• Commercial data;
• Trade secrets;
• Documents created for mediation;
• Final settlement amount.

The clause should distinguish between:

• Mediation communications; and
• Pre-existing evidence.

A document does not become unusable merely because it was shown during mediation.

Confidentiality exceptions should permit disclosure:

• Required by law;
• Necessary for enforcement;
• To professional advisers;
• To insurers;
• To auditors;
• To tax authorities;
• To financing institutions subject to confidentiality;
• With written consent.

Without-Prejudice Negotiations

International contracts often use “without prejudice” wording.

In Turkish practice, the stronger legal protection comes from the statutory mediation framework and the evidentiary rules of Law No. 6325.

The clause may state that communications are:

• Confidential;
• Made solely for settlement;
• Not admissions of liability;
• Protected to the fullest extent permitted by applicable law.

The parties should not assume that a private label automatically creates unlimited privilege for every document.

Costs and Fees

The clause should allocate:

• Mediator fees;
• Institutional fees;
• Venue;
• Interpreter;
• Expert fees;
• Travel;
• Lawyers’ fees.

A common provision is:

The mediator’s and institution’s fees shall be shared equally, while each party shall bear its own legal and advisory costs unless otherwise agreed in the settlement.

The annual Mediation Minimum Fee Tariff may apply to mediator remuneration in Turkey. The Ministry of Justice publishes the applicable tariffs.

The parties may agree on another fee structure within the applicable legal framework.

The clause should address whether one party’s non-attendance affects cost allocation.

Mediation and Limitation Periods

A critical drafting issue is the effect of mediation on limitation and forfeiture periods.

Law No. 6325 contains rules concerning the treatment of time during legally recognised mediation processes. However, the parties should not assume that every private negotiation or every informal meeting suspends all deadlines.

The clause should state that:

• Each party remains responsible for protecting legal deadlines;
• Interim filings may be made where necessary;
• Participation does not waive limitation defences;
• The parties may agree to a standstill where legally valid.

A standstill agreement should be drafted separately and precisely.

It should identify:

• Claims covered;
• Start date;
• End date;
• Effect on limitation;
• Applicable law;
• Exceptions.

The parties cannot contractually extend every mandatory forfeiture period.

Interim Measures

A mediation clause should preserve the right to seek urgent protection.

A party may need:

• Preliminary injunction;
• Interim attachment;
• Evidence preservation;
• Protection of trade secrets;
• Suspension of a bank guarantee payment where legally available;
• Preservation of goods;
• Maritime security;
• Emergency arbitration.

A good clause may state:

Nothing in this clause prevents either party from seeking urgent interim or conservatory relief from a competent court or emergency arbitrator. Such an application shall not be treated as a waiver of the mediation obligation.

Without this exception, the parties may argue about whether an urgent application breaches the clause.

Mediation Before Litigation

A simple litigation clause may provide:

1. Mediation;
2. Court proceedings if mediation fails.

The clause should identify the competent court separately.

For example:

Any dispute shall first be submitted to mediation. If no settlement is reached within thirty days after the mediator’s appointment, the courts of Istanbul shall have jurisdiction, subject to mandatory jurisdiction rules.

The jurisdiction clause and mediation clause should be consistent.

The parties should not confuse:

• Mediation venue;
• Court jurisdiction;
• Contractual notice address.

Where statutory mandatory mediation applies, the claimant must also comply with the official condition-of-action procedure. The contractual process should not be drafted as a substitute for statutory requirements.

Mediation Before Arbitration

Mediation-arbitration clauses are common in international contracts.

A typical clause may provide:

1. Negotiation;
2. Mediation;
3. Arbitration.

The arbitration clause should remain independently valid even if the mediation stage is disputed.

A practical clause may state:

If the dispute is not settled within forty-five days after the appointment of the mediator, it shall be finally resolved by arbitration under the specified rules.

The clause should identify:

• Arbitration institution;
• Seat;
• Number of arbitrators;
• Language;
• Governing law.

The mediation clause should not contradict the arbitration clause.

For example, the contract should not provide that:

• Mediation must occur in Ankara;
• Arbitration must begin within fifteen days of the dispute;
• Mediation lasts sixty days.

These periods are inconsistent.

Multi-Tier Dispute Resolution Clauses

A multi-tier clause may require several stages.

An effective structure may be:

Stage One: Project-Level Negotiation

Operational representatives meet within five business days.

Stage Two: Senior Management Negotiation

The dispute escalates to executives who were not directly involved.

Stage Three: Mediation

A mediator is appointed if senior management cannot resolve the matter.

Stage Four: Arbitration or Litigation

Formal proceedings begin if mediation fails.

The clause should define when each stage ends.

A common drafting failure is requiring “friendly negotiations” without a start date or maximum period.

An objective clause may state:

If the project managers do not resolve the dispute within ten business days after written notice, the dispute shall be referred to senior executives for a further ten business days. Thereafter, either party may initiate mediation.

Negotiation Clauses Versus Mediation Clauses

Negotiation and mediation are different.

In negotiation:

• The parties communicate directly;
• No neutral third party is required.

In mediation:

• A neutral registered mediator manages the process;
• Statutory confidentiality rules may apply;
• The process may produce an enforceable settlement.

The contract should not use the terms interchangeably.

A clause stating “the parties shall mediate between themselves” is unclear.

Escalation Clauses

Commercial contracts may require the dispute to be escalated internally.

The clause should identify positions rather than named individuals.

For example:

• Project directors;
• General managers;
• Chief legal officers;
• Board representatives.

Named individuals may leave the organisation.

The clause should also state what happens if one position does not exist.

Consequences of Refusing Mediation

The contract may regulate the consequences of refusal.

Potential consequences may include:

• Contractual breach;
• Cost allocation;
• Right to commence the next stage;
• Loss of a contractual cost benefit.

The clause should avoid excessive penalties that may be challenged.

A practical provision may state:

If a party fails to respond to the mediation notice or participate within the stated period, the other party may proceed immediately to arbitration or litigation.

A stronger commercial consequence may require separate legal review.

Should the Clause Include a Contractual Penalty?

A contractual penalty for refusal to mediate may create enforceability and proportionality concerns.

Potential problems include:

• Dispute over whether attendance was meaningful;
• Excessive pressure to remain in mediation;
• Penalty despite legitimate urgent action;
• Conflict with access-to-justice principles;
• Disproportionate amount.

A cost-shifting or right-to-proceed provision is often more practical than a large fixed penalty.

Where a penalty is used, it should be:

• Clear;
• Proportionate;
• Linked to an identifiable breach;
• Subject to mandatory law;
• Excluded where urgent relief or impossibility applies.

Futility and Exceptions

The parties may wish to bypass mediation where:

• The other party has disappeared;
• Insolvency is imminent;
• Assets are being transferred;
• A limitation period is expiring;
• Urgent injunctive relief is necessary;
• The other party expressly refuses;
• The dispute concerns only enforcement of an existing settlement;
• Immediate statutory action is required.

A clause may include:

A party may proceed to formal proceedings without completing mediation where urgent relief is required, the other party refuses to participate or the mediation cannot reasonably be commenced within the agreed period.

This exception should not be so broad that the clause becomes meaningless.

Contract Termination and Mediation

A dispute-resolution clause generally survives termination if drafted broadly.

The contract should state:

This mediation and dispute-resolution clause survives expiry, termination, rescission or invalidity of the agreement.

This is particularly important where the dispute arises after termination concerning:

• Unpaid invoices;
• Confidentiality;
• Non-compete;
• Return of equipment;
• Intellectual property;
• Compensation.

Invalidity of the Main Contract

The parties may dispute whether the main contract is valid.

The mediation clause should expressly cover:

• Existence;
• Formation;
• Validity;
• Invalidity;
• Termination.

Unlike arbitration agreements, mediation clauses do not necessarily operate through exactly the same separability doctrine. Clear drafting reduces uncertainty.

Settlement Agreements Reached Through Mediation

If the parties settle, the agreement should be drafted separately from the original mediation clause.

The settlement should identify:

• Parties;
• Dispute;
• Claims settled;
• Payment or performance;
• Due dates;
• Conditions;
• Confidentiality;
• Pending proceedings;
• Release;
• Default;
• Enforcement.

Law No. 6325 provides that parties generally cannot bring a new action concerning matters agreed in mediation. It also regulates when the settlement may qualify as an enforceable document equivalent to a judgment.

The settlement should not merely state:

The dispute has been settled.

It should specify the actual obligations.

Enforceability of the Settlement in Turkey

The enforceability of a mediation settlement depends on:

• The nature of the dispute;
• The persons signing;
• Whether lawyers participate;
• Whether the settlement concerns commercial matters;
• Whether statutory formalities are satisfied;
• Whether additional registry or notarial steps are required.

Law No. 6325 states that certain agreements signed jointly by the parties’ lawyers and the mediator, and in commercial disputes agreements signed by the lawyers and mediator in the statutory structure, may constitute judgment-equivalent enforceable documents without a separate enforceability annotation.

Where an annotation is required, the competent court examines enforceability within the limited statutory framework.

An enforceable mediation agreement does not eliminate other formal requirements.

For example, an agreement concerning:

• Real estate transfer;
• Company share transfer;
• Registered intellectual property;
• Mortgage;
• Pledge;
• Corporate resolution

may require separate official procedures.

Enforcement of the Mediation Clause Itself

The mediation clause and the settlement agreement must be distinguished.

The settlement agreement may become directly enforceable.

The original mediation clause is a promise concerning future procedure. Its enforcement may involve:

• Request for suspension;
• Admissibility objection;
• Contractual breach claim;
• Cost consequences;
• Tribunal interpretation.

Turkish courts and arbitral tribunals may examine:

• Whether the clause is mandatory;
• Whether it is sufficiently certain;
• Whether the party attempted performance;
• Whether the other party refused;
• Whether urgent circumstances justified bypassing it;
• Whether the mediation period expired.

A clause cannot safely guarantee that a court will dismiss every prematurely filed action. The procedural result depends on statutory law and judicial interpretation.

Foreign Parties and Cross-Border Contracts

Mediation clauses are particularly useful in international commercial agreements.

They may allow parties from different countries to resolve disputes:

• Online;
• In English;
• Before a neutral mediator;
• Without choosing one party’s national court immediately;
• While preserving an arbitration clause.

Law No. 6325 applies to eligible private-law disputes involving a foreign element.

A cross-border clause should address:

• Governing law;
• Mediation rules;
• Language;
• Place;
• Online participation;
• Mediator nationality or qualification;
• Currency;
• Settlement signature;
• Enforcement;
• Arbitration or court stage.

Online Mediation Clauses

A contract may provide that mediation will be conducted online.

The clause may state:

Unless otherwise agreed, all mediation sessions may be conducted by secure video conference.

The parties should consider:

• Identity verification;
• Electronic signatures;
• Confidentiality;
• No-recording rule;
• Document sharing;
• Time zones;
• Interpreter participation;
• Corporate authority.

Online mediation is particularly useful for international supply, software, distribution and logistics agreements.

Governing Law

The contract should distinguish between:

• Law governing the main contract;
• Law governing the mediation clause;
• Law governing the settlement;
• Procedural law of later arbitration or litigation.

A simple approach is to provide that the entire agreement, including the mediation clause, is governed by Turkish law.

Where arbitration is seated abroad, additional analysis may be required.

Mediation Clause and Jurisdiction Clause

A mediation clause does not replace the need for a clear jurisdiction or arbitration clause.

The contract should answer:

• What happens if mediation fails?
• Which court is competent?
• Is arbitration final?
• Are interim measures available?
• What is the seat?
• Which law applies?

A contract stating only “disputes will be mediated” is incomplete because mediation may end without agreement.

Model Basic Mediation Clause

A basic clause may be drafted as follows:

Any dispute arising out of or in connection with this agreement shall first be submitted to mediation under Law No. 6325 on Mediation in Civil Disputes. The party initiating mediation shall give written notice describing the dispute. The parties shall appoint a registered mediator within ten business days after receipt of the notice. If the dispute is not settled within thirty days after the mediator’s appointment, either party may commence proceedings before the competent courts. Nothing in this clause prevents a party from seeking urgent interim or conservatory relief.

This is an illustrative model and should be adapted to the transaction.

Model Mediation-Arbitration Clause

Any dispute, controversy or claim arising out of or in connection with this agreement, including its existence, validity, interpretation, performance, breach or termination, shall first be referred to mediation. The mediation shall be conducted in English by a mediator jointly appointed from the Turkish Mediators’ Register. If the parties do not appoint a mediator within ten business days after the mediation notice, the mediator shall be appointed by the agreed institution. If no settlement is reached within forty-five days after appointment, the dispute shall be finally resolved by arbitration under the rules specified in this agreement. The seat of arbitration shall be Istanbul and the language shall be English. Either party may seek urgent interim protection without waiving the mediation requirement.

Model Multi-Tier Clause

A party shall notify the other party in writing of any dispute arising from this agreement. The parties’ contract managers shall attempt to resolve the dispute within ten business days. If no resolution is reached, the dispute shall be referred to the parties’ general managers for a further ten business days. If the dispute remains unresolved, it shall be submitted to mediation for a period of thirty days after the mediator’s appointment. If no settlement is reached within that period, either party may commence arbitration or litigation as provided in this agreement.

Clauses for Construction Contracts

Construction mediation clauses should consider:

• Ongoing work;
• Engineer decisions;
• Progress payments;
• Variations;
• Delay;
• Defects;
• Interim measures;
• Expert determination.

A clause may permit the project to continue while mediation occurs.

It may require immediate mediation concerning:

• Suspension;
• Payment certificate;
• Access to site;
• Security;
• Design change.

Clauses for Shareholders’ Agreements

Shareholder mediation clauses should address:

• Deadlock;
• Valuation;
• Share transfer;
• Confidentiality;
• Family disputes;
• Corporate approvals;
• Interim management.

The clause may include mediation before:

• Buy-sell procedure;
• Arbitration;
• Dissolution claim.

It should not prevent urgent action against unauthorised asset transfers or invalid corporate resolutions.

Clauses for Distribution and Franchise Contracts

These clauses may cover:

• Territory;
• Sales targets;
• Pricing;
• Termination;
• Stock;
• Trademark use;
• Non-compete;
• Customer transition.

The mediation period should be coordinated with:

• Termination notice;
• Sell-off period;
• Payment defaults;
• Brand-removal deadlines.

Clauses for Technology and Licence Agreements

Technology disputes may require:

• Technical expert;
• Source-code protection;
• Cybersecurity confidentiality;
• Rapid interim relief;
• Online mediation.

The clause may require a mediator familiar with intellectual property or technology contracts.

Common Drafting Mistakes

Using Optional Language Accidentally

The parties intend mandatory mediation but use “may.”

Failing to Identify the Next Stage

The clause says disputes will be mediated but does not explain what happens after failure.

No Appointment Mechanism

The parties cannot agree on the mediator.

No Time Limit

One party uses mediation to delay proceedings.

Excessively Short Time Limit

The process ends before meaningful negotiation can occur.

Failing to Preserve Interim Relief

Urgent evidence or assets may be lost.

Confusing Contractual and Statutory Mediation

The parties incorrectly assume their clause replaces the official condition-of-action process.

No Authority Requirement

Representatives attend without settlement authority.

Overbroad Confidentiality

The clause prevents legally required disclosures or use of pre-existing evidence.

No Language Provision

International parties disagree about interpretation and translation.

Inconsistent Arbitration and Mediation Deadlines

The stages cannot be performed in the stated sequence.

Naming an Unavailable Mediator

The clause has no replacement mechanism.

Imposing Settlement

The clause states the parties must “resolve” the dispute rather than attempt mediation.

Practical Drafting Checklist

A commercial mediation clause should address:

• Mandatory or optional character;
• Scope of disputes;
• Parties covered;
• Notice;
• Commencement date;
• Mediator qualifications;
• Appointment;
• Fallback appointment;
• Institution or ad hoc procedure;
• Place;
• Online participation;
• Language;
• Time limit;
• Good-faith participation;
• Settlement authority;
• Lawyers;
• Experts;
• Confidentiality;
• Costs;
• Limitation periods;
• Interim measures;
• Consequence of refusal;
• Next dispute-resolution stage;
• Survival after termination;
• Governing law.

Reviewing an Existing Clause After a Dispute Arises

When a dispute occurs, the parties should review:

1. Is the clause mandatory?
2. Does it cover this dispute?
3. Was notice given correctly?
4. Has the mediator been appointed?
5. Has the period begun?
6. Are urgent measures necessary?
7. Does statutory mandatory mediation also apply?
8. Is arbitration or litigation the next stage?
9. Are limitation periods protected?
10. Who has settlement authority?

The party should document every compliance step.

Evidence may include:

• Notice;
• Delivery confirmation;
• Proposed mediator list;
• Appointment correspondence;
• Meeting invitation;
• Non-attendance record;
• Final report.

Refusal to Participate

Where one party refuses, the initiating party should:

• Send a formal notice;
• Follow the appointment mechanism;
• Offer reasonable dates;
• Record the refusal;
• Observe the agreed waiting period unless an exception applies;
• Protect legal deadlines;
• Proceed according to the next stage.

A party should not manufacture a refusal by proposing impossible dates or an obviously conflicted mediator.

Relationship With Mandatory Mediation Applications

If the dispute is covered by statutory commercial mediation, the claimant should apply to the competent courthouse mediation office or the designated registry. The Ministry of Justice explains that applications are made through these offices and provides procedural templates for mandatory and voluntary mediation.

The party should not assume that an earlier private meeting automatically satisfies the condition of action.

Where possible, the contractual process should be coordinated with the statutory application from the beginning.

Amendment of Mediation Clauses

Commercial parties should review mediation clauses when:

• Legislation changes;
• Contract value increases;
• Parties enter new markets;
• Arbitration rules change;
• Corporate structure changes;
• Online performance becomes common;
• New affiliates or guarantors join.

An amendment should be signed in compliance with the formal requirements applicable to the main contract.

The Role of a Turkish Commercial Lawyer

A Turkish commercial lawyer may assist by:

• Drafting the mediation clause;
• Coordinating it with arbitration and jurisdiction provisions;
• Determining whether statutory mandatory mediation applies;
• Preparing the mediation notice;
• Protecting limitation periods;
• Selecting the mediator;
• Representing the party;
• Reviewing authority;
• Structuring settlement;
• Preparing enforceable terms;
• Commencing litigation or arbitration after failure.

The lawyer should consider the clause at the contract-drafting stage rather than only after a dispute arises.

Frequently Asked Questions

Are mediation clauses valid in Turkish commercial contracts?

Commercial parties may generally agree to attempt mediation for disputes they may lawfully settle, subject to mandatory law and the clarity of the clause.

Does a mediation clause replace statutory mandatory mediation?

No. A contractual clause cannot remove or replace a mediation requirement imposed by legislation.

Does the clause require the parties to settle?

No. It may require participation, but the settlement decision remains voluntary.

What wording creates a mandatory obligation?

Terms such as “shall submit” and “before commencing proceedings” are clearer than “may mediate.”

What happens if one party refuses?

The other party should document the refusal, follow the agreed procedure and proceed to the next dispute-resolution stage when permitted.

Can court proceedings be filed immediately?

Urgent interim applications may be preserved expressly. Ordinary proceedings depend on the clause, statutory requirements and circumstances.

Can the parties choose any mediator?

They may agree on selection criteria, but using a mediator registered under the Turkish statutory system is generally advisable for mediation governed by Law No. 6325.

Can mediation be conducted in English?

Yes. The clause should specify the language and controlling settlement version.

Can mediation take place online?

Yes. Online mediation may be agreed, subject to identity, authority, confidentiality and valid signature requirements.

Does mediation suspend limitation periods?

Law No. 6325 contains relevant rules, but informal negotiations do not automatically protect every deadline. Specific limitation and forfeiture periods must be reviewed.

Can a party seek an injunction?

Yes, where the clause preserves urgent interim and conservatory relief.

Is the settlement enforceable?

A valid settlement may be enforceable under Law No. 6325, subject to signatures, content and applicable formal requirements.

Can the clause provide for arbitration after mediation?

Yes. The clause should identify the institution, seat, language and trigger for arbitration.

Can a named mediator be used?

Yes, but a replacement procedure should be included.

Should the clause state who pays the costs?

Yes. Equal sharing of mediator fees and separate responsibility for lawyers’ fees are common approaches.

Conclusion

Mediation clauses in commercial contracts in Turkey can provide businesses with a structured, confidential and commercially effective first step for resolving contractual disputes.

A properly drafted clause may help the parties:

• Communicate before positions become entrenched;
• Preserve an ongoing business relationship;
• Protect commercial information;
• Resolve technical issues through experts;
• Negotiate payment or restructuring;
• Avoid unnecessary litigation or arbitration.

The clause should not be drafted as a general statement that disputes will be settled amicably. It should create a workable procedure.

A strong commercial mediation clause should identify:

• The disputes covered;
• The parties bound;
• The notice procedure;
• The mediator-selection method;
• A fallback appointing mechanism;
• The mediation language and location;
• The time allowed;
• Participation authority;
• Confidentiality;
• Costs;
• Interim measures;
• The next formal procedure.

The clause must distinguish contractual mediation from statutory mandatory mediation.

Where Turkish legislation requires mediation as a condition of action, the parties must comply with the official procedure under Law No. 6325 and the relevant substantive legislation. A private contract cannot waive that obligation.

The clause should also preserve the right to seek urgent protection. A party should not be required to wait while assets disappear, evidence is destroyed, confidential information is disclosed or a limitation deadline expires.

The relationship between mediation and arbitration must be coordinated carefully. The arbitration trigger should be objective, such as expiry of a fixed period after mediator appointment. The arbitration institution, seat, language and governing law should be stated separately.

Where litigation follows, the competent court clause should remain consistent with mandatory jurisdiction rules.

The parties should not impose an obligation to settle. Mediation is based on voluntary decision-making. The contractual obligation should be limited to initiating and participating meaningfully in the process.

When a settlement is reached, the parties should prepare a separate and precise agreement stating:

• Payment;
• Performance;
• Timing;
• Conditions;
• Releases;
• Default;
• Pending proceedings;
• Enforcement.

Law No. 6325 recognises significant legal consequences for mediation settlements. Matters validly agreed generally cannot be relitigated, and settlement documents satisfying statutory conditions may acquire judgment-equivalent enforceability.

A commercial contract should therefore treat the mediation clause as a substantive risk-management tool rather than standard boilerplate.

An experienced Turkish commercial mediation lawyer can draft a clause compatible with Turkish law, coordinate it with arbitration or court provisions and ensure that any resulting settlement is legally precise and enforceable.

Disclaimer: This article is provided for general informational purposes only and does not constitute legal, tax, financial or contractual advice. Turkish mediation, commercial, arbitration and procedural rules may change. Every mediation clause should be adapted to the contract, parties, transaction, governing law, dispute value and intended enforcement mechanism.