NEW MANDATORY MEDIATION PROCEEDING IN COMMERCIAL DISPUTES
In accordance with article 20 and the following articles of the Law No. 7155 on The Initiation Of Enforcement Proceedings For Receivables Arising From Subscription Contracts (in Turkish, “7155 Sayılı Abonelik Sözleşmesinden Kaynaklanan Para Alacaklarına İlişkin Takibin Başlatılması Usulü Hakkında Kanun”) published in the Official Gazette on 19th December 2018, as of 1 January 2019, for the commercial lawsuits regarding the collection of receivables and compensation claims, the subject of which is the payment of some money, it is now mandatory to apply to a mediator before filing a lawsuit (as a condition of litigation). However, this provision shall not be applied to the lawsuits before the Courts of First instance, Provincial Court of Appeal and the Supreme Court that are already pending at the date of entry of the relevant articles into force.
If a lawsuit is filed without applying to the mediator, the subject lawsuit shall be dismissed by the court due to the absence of the condition of litigation without evaluating the merits of the case.
If no agreement is reached between the parties at the end of the mediation, the plantiff should enclose the original of the final disagreement report or a copy of the same approved by the mediator to his/her petition. In case of failing to comply with this condition, the court shall send an invitation to the plaintiff warning that the final disagreement report should be submitted to the court within the definite period of one week, otherwise the lawsuit will be dismissed depending on procedural reasons. If the mentioned condition is not fulfilled within the granted period, the lawsuit shall be rejected by the court even without sending the plaintiff’s petition to the defendant (the other party of the lawsuit).
The mediator shall conclude the mediation procedure within six weeks beginning as of the date of his /her appointment. This period may be extended by the mediator for a maximum of two weeks in case of necessity.
If the mediation procedure is concluded due to the failure of one of the parties to attend to the first meeting without any valid excuse, the party who does not attend to the meeting shall be mentioned in the final mediation report and shall be kept fully liable for the entire court expenses, even the lawsuit is partially or wholly concluded in favor of him/ her. Parties shall bear their own court expenses in the lawsuits that are initiated as a result of a mediation proceeding that ended due to the absence of both parties in the first meeting.
The mediator shall be appointed by the mediation bureau from the list given to the commission presidencies. However, if the parties agree on any of the mediators mentioned in the list, this mediator shall be appointed.
If there is an obligation of applying to the arbitration or other alternative ways of dispute resolution in some specific codes, this mandatory mediation proceeding shall not apply.
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