Mandatory Mediation Process for Commercial Disputes 28 December 2018

The Law on the Execution Proceedings for the Collection of Monetary Receivables Arising out of Subscription Agreements No. 7155 (“Law no.7155”) was published in the Official Gazette on 19 December 2018 and amended the Turkish Commercial Code by the addition of Article 5/A. Pursuant to new regulation, the mediation process becomes mandatory before initiating a lawsuit for commercial disputes regarding payment of a certain amount of money and compensation claims. This requirement shall not be applied to the pending cases before the courts of first instance, Regional Courts of Justice and the Supreme Court.

Under the Law no. 7155, the mediator will finalize the proceeding with respect to claims for payment of certain amount of money and compensation within six weeks from his assignment date; which can be extended by the mediator up to two weeks at most under special circumstances. The mediator is designated by the mediation office from the list reported to the presidency of the commission. However, if the parties agreed upon any mediator in the list, such mediator shall be appointed.

If it is understood that the lawsuit was initiated without applying to the mediator, the case shall be rejected without any proceedings and on procedural grounds due to lack of pre-requirement. If the parties cannot reach an agreement as a result of the mediation proceeding, the plaintiff has to submit the original of the final mediation report or a sample approved by the mediator together with the lawsuit petition. In case of non-compliance with this requirement, the court will send an invitation to the plaintiff stating that final mediation report should be submitted to the court within a week; otherwise, the case will be rejected on procedural ground. If the plaintiff will not comply with the requirements of such invitation, the case shall be rejected on procedural grounds without notifying the lawsuit petition to the counterparty.

The mediator shall terminate the mediation process and notify the mediation office by issuing a final report, (i) if the mediator failed to reach to the parties; (ii) no meeting occurred since the parties were not present or (iii) the parties did or did not make an agreement. If the mediation process is terminated because of the failure of a party to attend the initial meeting without a reasonable excuse, such party shall be stated in final mediation report and held responsible for the costs of the proceedings irrespective of whether that party partially or totally justifies its claims before the court. Moreover, the court cannot rule the legal counsel's fee in favor of this party. The mediation fee will be determined in accordance with the Mediation Minimum Fee Tariff considering that whether the parties reach an agreement or not.

In conclusion, the mediation process which is adopted as a mandatory mechanism for certain labor disputes, also becomes mandatory for commercial disputes regarding payment of a certain amount of money and compensation claims as of January 1, 2019. It has great importance to evaluate the mediation in commercial disputes which becomes a pre-condition in accordance with the relevant provisions of Law no. 7155, as an alternative dispute resolution method and to manage this mandatory process by taking a support from a lawyer experienced in this field.

Türkçe Versiyonu İçin

http://www.kasaroglu.av.tr/tr/ticari-uyusmazliklarda-zorunlu-arabuluculuk-sarti

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