Information About Compulsory And Arbitrary Mediation Activities In Labor Law – Employment and HR

Irina Baranova


Turkey:

Information About Compulsory And Arbitrary Mediation Activities In Labor Law


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In Labor Law, there are some important differences between
compulsory and arbitrary mediation.

Within this framework, you can find the details about compulsory
and arbitrary mediation in labor law disputes as below:

Compulsory and Arbitrary Mediation in Labor Law

Mediation, one of the alternative dispute resolutions methods,
is regulated by Mediation in Legal Disputes Law No.
6325
 (In Turkish.), and a legal basis has been prepared
for legal disputes. Mediation is the method used by the parties for
a private law dispute before or after filing a lawsuit under the
arbitration of an impartial third party (mediator) who has received
specialized training, chosen by their own free will.

There are two types of meditation in Turkish Law;
“compulsory mediation” and “arbitrary
mediation.”

Compulsory Mediation: In Turkish Law, the
obligation to apply to a mediator before filing a lawsuit for some
disputes is regulated by the legislator.Compulsory mediation is a
cause of action for these disputes. In other words, in disputes in
which mediation is compulsory, lawsuits filed without a mediator
are rejected due to the absence of a litigation requirement.

Arbitrary Mediation: In arbitrary mediation,
although the parties do not have to apply to a mediator, they
prefer to apply to a mediator instead of filing a lawsuit to
resolve the dispute. The parties can apply to an arbitrary
mediation regarding any private law dispute.

Mediation In Labor Law

With the Official Gazette numbered 30221 and dated 25.10.2017,
the amendments to Labor Courts Law No. 7036 were published,
and the regulations regarding mediation entered into force on 1
January 2018. Pursuant to the aforementioned regulations, an
obligation to apply to a mediator has been introduced as a
prerequisite for the lawsuits to be filed regarding receivables,
compensation claims, and reinstatement demands of employees or
employers arising from collective or individual employment
agreements. In case a mediator is not applied to before filing a
lawsuit, the lawsuit is dismissed procedure due to the absence of
litigation requirements. In this regard, the plaintiff should
attach the mediation record to the petition, indicating that no
agreement could be reached at the end of the mediation.

  • Compulsory Mediation Disputes in Labor Law:

The compulsory mediation applies to employment claims related to
compensation and receivables arising from employment relations and
reinstatement. Apart from the Labor Law, together with the
employment contract regulated in the Turkish Code of Obligations,
collective labor law agreements regulated in the Trade Unions and
Collective Bargaining Agreement Law are considered within the scope
of compulsory mediation in disputes arising from the employment
contract regulated in the Maritime Labor Law and the Press Labor
Law. However, cases related to the determination of insurance
(action for fixing the period of service), work accidents, and
occupational diseases are not subject to compulsory mediation, but
a lawsuit can be filed directly without making an application. To
resolve the legal problem between the employee and the employer,
they have to apply to a compulsory mediator.

  • Arbitrary Mediation in Labor Law:

In the Labor Law, the employee and the employer may voluntarily
resort to mediation, which is a fast and functional trial, as an
alternative dispute resolution method to resolve the legal dispute
between them.

For instance, the employer wants to terminate the employment
contract by paying the employer’s monetary acquisition arising
out of the employment contract, they can prefer to terminate the
contract with an arbitrary mediator mediator to clarify and make it
official paying date, amount, and who will be responsible for the
mediator’s fee.

Differences Between Compulsory Mediation and an Arbitrary
Mediation Within the Scope of the Labor Law

Applying to a mediator for employment disputes is a litigation
requirement when filing a lawsuit concerning monetary claims by
employee or employer arising out of employment contracts,
collective labor agreements, or reinstatement claims.However, if
the employee and employer want to reach an agreement without filing
a lawsuit, they can prefer to apply to an arbitrary mediator. For
this reason, there are some differences in applying to a compulsory
and an arbitrary mediator mediator. These differences are;

  • Although compulsory mediation is a prerequisite for filing a
    lawsuit in labor courts, arbitrary mediator mediation is an
    alternative dispute resolution method used by employers and
    employees instead of voluntarily filing a lawsuit.

  • Employers and/or employees have to apply compulsory mediation
    in mediation offices located in courthouses. In arbitrary mediator
    mediation, the parties may appoint a mediator of their choosing
    without seeking authorization.

  • In the compulsory mediation process in the Labor Law for
    reinstatement claims and monetary claims by the employee or the
    employer arising out of employment contracts, the mediators should
    finalize the compulsory mediation process within 3 weeks from the
    date of their appointment. This period may be extended by the
    mediator for a maximum of one week more. Therefore, the compulsory
    mediation process in labor cases should be
    terminated/completed/finalized within a maximum of 4 weeks.In
    arbitrary mediator mediation, there is no limited timeline for the
    mediator to finalize the application, it is enough to complete the
    process within a reasonable time.

Conclusion

As an alternative solution, mediation has been practiced in the
Turkish law/legal system recently. This institution, which is
included in Turkey’s legal system as an alternative dispute
resolution, is aimed to reduce the workload of labor courts by
making it compulsory in some types of lawsuits as of January 1,
2018, with the amendment made to the Law on Labor Court No. 7036.
It is an alternative dispute resolution method that accelerates the
process and provides financial convenience to the parties in terms
of employees and employers.

The mediation record/report signed by the parties is considered
as a verdict document.

During the mediation, the impartiality and independence of the
mediator have become one of the most critical matters in the
parties’ seeking rights.

This article aims to provide a brief and general overview of the
mediation process in labor law disputes in Turkey, it does not
constitute legal advice. Before taking any action or relying on the
information given, addressees of this Article should seek specific
advice on the matters which concern them.

You can reach the Mediation Law in Civil Disputes No. 6325 via
the link (In Turkish.)

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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