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Prof. Dr. Ali Yeşilırmak, faculty member at İbn Haldun University Faculty of Law, stated that, with the “Mediation in Commercial Disputes” which entered into force on 1 January, many disputes could be resolved out of court within a short time, and that mediation would bring peace to commercial life. In his written statement, Yeşilırmak announced that mediation, which has been made a precondition to litigation in commercial disputes concerning receivables and compensation as well, began to apply as of 1 January 2019.
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This article was prepared on the basis of the legislation and practice in force on the date of its publication. The article is a news text dating from 2019; there may have been amendments to the law and the tariff since then regarding the scope of commercial mediation, time limits, mediation fees and costs, and the requirements for becoming a mediator. You are advised to consult a lawyer regarding the current position.
Yeşilırmak said: “With Law No. 7155, applying to a mediator before bringing an action has been made a precondition for bringing an action in commercial disputes.
For disputes concerning receivable and compensation claims whose subject is the payment of a sum of money, a mediator will first be applied to. If the dispute cannot be resolved in this way, an action may be filed with the original or a certified copy of the final report drawn up in the mediation process.” he stated.
Stating that commercial disputes can be resolved through mediation under the current legal framework and that mediation will also bring peace to commercial life, Yeşilırmak said that, although commercial disputes differ from employment disputes, a significant number of disputes are expected to be resolved by mediators.
Providing information on the mediation process in commercial cases, Yeşilırmak stated the following:
“In commercial disputes, applications will be made to the mediation office at the place where the court with jurisdiction over the subject matter of the dispute is located or, in places where no mediation office has been established, to the designated court registry. Applications will be concluded within six weeks from the date on which the mediator is appointed. If necessary, the mediator may extend this period by a further two weeks. The mediation activity will end where the parties cannot be reached, where no mediation meeting can be held because the parties do not attend, or where the parties reach or fail to reach an agreement at the end of the process. In this case, the mediator will draw up the final report and notify the mediation office.”
The process described in the statement consists briefly of the following stages:
Noting that the costs of the proceedings are regulated separately according to the outcome of the process, Yeşilırmak continued:
“If the parties reach an agreement at the end of the activity, the mediation fee will be borne equally according to the Minimum Fee Tariff for Mediation, unless otherwise agreed. In this case, the fee may not be less than the fee for two hours set out in the tariff. If the parties cannot be reached, no meetings can be held because the parties do not attend, or the parties are unable to reach an agreement after meetings lasting less than two hours, the fee for two hours will be paid from the budget of the Ministry of Justice. If the parties cannot reach an agreement after meetings lasting more than two hours, the fee for the part exceeding two hours will be borne equally by the parties unless otherwise agreed. Mandatory expenses incurred by the mediation office will be paid by the parties in accordance with the agreement if an agreement is reached. If no agreement is reached, the expenses will be covered from the Ministry’s budget, to be paid subsequently by the party found to be in the wrong.”
Fees and expenses according to the outcome of the activity, as per the explanation
| Outcome | Fees and costs |
|---|---|
| If the parties reach agreement | Unless otherwise agreed, the fee under the tariff is borne equally; it may not be less than the fee for two hours. Necessary costs are paid by the parties in accordance with the agreement. |
| If the parties cannot be reached, do not attend, or fail to agree in a meeting of less than two hours | The fee for two hours is paid from the budget of the Ministry of Justice. |
| If no agreement is reached in a meeting of more than two hours | Unless otherwise agreed, the part exceeding two hours is borne equally by the parties. |
| If no agreement is reached (costs) | Costs are covered from the ministry’s budget, to be paid later by the party found to be in the wrong. |
Also referring to the requirements for becoming a mediator, Yeşilırmak said: “To become a mediator, one must be a Turkish citizen, be a law faculty graduate with at least 5 years of professional experience, have full legal capacity and not have been convicted of an intentional offence, complete mediation training and pass the written and oral examinations of the Ministry of Justice.” Yeşilırmak stated that applications for the Mediation Training offered at the Continuing Education Centre (İHSEM) of İbn Haldun University are still open.
The requirements listed in the statement are as follows:
The Mediation Training Certificate Programme, consisting of 14 modules, comprises 84 teaching hours. In this programme, which follows a training handbook prepared by an expert team commissioned by the Mediation Department of the Ministry of Justice, practical training aimed at developing the skills a mediator should have is provided alongside theoretical training. Applications and detailed information are available at https://ihsem.ihu.edu.tr/temel-arabuluculuk-egitim-programi/
Source: AA (Anadolu Agency)
Under the rules in force in 2019, when the article was written, Law No. 7155 made applying to a mediator before bringing an action a precondition to litigation in commercial disputes concerning receivables and compensation claims whose subject matter is the payment of a sum of money.
According to the explanation, the application is made to the mediation office in the place where the competent court for the subject of the dispute is located, or, where no office has been established, to the designated court registry.
Under the rules in force when the article was written, applications are concluded within six weeks from the date the mediator is appointed and may be extended by two weeks if necessary. The process ends where the parties cannot be reached, the parties do not attend, or an agreement is or is not reached, and the mediator draws up the final report.
Açıklamaya göre taraflar anlaşırsa ücret, Arabuluculuk Asgari Ücret Tarifesi’ne göre aksi kararlaştırılmadıkça eşit olarak karşılanır. Taraflara ulaşılamaması, katılmama veya iki saatten kısa görüşmede anlaşılamaması hâlinde iki saatlik ücret Adalet Bakanlığı bütçesinden ödenir.
The article lists the following requirements: being a Turkish citizen, holding a law degree and having at least 5 years of professional experience, having full capacity to act, not having been convicted of an intentional offence, completing mediation training, and passing the written and oral examinations of the Ministry of Justice.
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