Majority of the workload of courts consists of the disputes between employees and employers. Due to this heavy workload, resolution of disputes takes a long time, which may lead to damages for the parties. Filing actions is also quite costly for the parties.
In order to avoid those problems, mediation is intended to be compulsory in employment disputes. In this extent, the “The Draft Law on Labour Courts” containing regulations concerning “compulsory mediation” (“Compulsory Mediation Draft”) was prepared and presented to the public authorities and organizations to get their opinions. The Compulsory Mediation Draft is expected to enter into force soon.
The obligations to be borne by employees and employers following the entry into force of the Compulsory Mediation Draft are briefly explained below.1. What is Mediation?
Mediation is a dispute resolution method which is conducted optionally and by a neutral, independent and specialized third party through systematic techniques, bringing parties together to hold discussions and negotiations and establishing a communication to help them understand each other and thus find a solution among themselves. In other words, the mediator cannot give legal advices to the parties, or develop a solution or catalog of solutions and impose the same upon the parties, or force them to agree on a solution offered during the negotiations. A mediator can only share an offer made by one of the parties to resolve the dispute with the other party with the former’s consent.
Accordingly, the mediator brings parties together and assists them in finding a solution and, in this regard, the mediator has no authority to make decisions like a judge or an arbitrator. Similarly, the mediator cannot carry out the procedures such as investigation, application to an expert or hearing witnesses which can only be performed by a judge and/or arbitrator with a judicial power.2. Cases Where Mediation Will Be Compulsory
Upon entry into force of the Compulsory Mediation, it will be compulsory to apply for mediation before filing an action for all kinds of disputes based on employees’ claims such as severance and notice pay, salary and annual leave pay under law, individual or collective employment contracts, and for re-employment actions.
If an action is filed before applying for mediation, such action will be dismissed without prejudice due to lack of cause of action. Parties will be able to file an action only if they fail to reach an agreement through mediation.
Time bar will be stopped and prescription periods will not run during the period starting from application for mediation to the date of issuance of the last minute. Thus, parties’ loss of rights will be prevented.3. How to Apply for a Mediator?
An employee and employer having a dispute on the above-specified matters will apply to the mediation office at the place of domicile of the counter party or, in case of multiple counter parties, at the place of domicile of one of them. In places where there is no mediation office, the application will be made to the registry office of the civil court of peace appointed by the justice commission of the first instance court for jurisdiction.
Parties will also choose a mediator for resolution of the dispute. Parties may choose the mediator at their discretion from the lists issued by the Department of Mediation and kept by the justice commission of the first instance court for jurisdiction. In this extent, among the registered mediators, the Department of Mediation will make a list of mediators who are willing to act as a mediator in employment disputes, stating their area of expertise if any, and submit such list to the justice commissions of the first instance court for jurisdiction.
In case parties fail to agree on a mediator, the mediator shall be appointed by the mediation office.4. The Mediation Procedure
The mediator will use all means of communication and inform the parties about his/her appointment, and invite them to the first meeting.
In the beginning of the mediation process, the mediator personally and directly provides the parties with information regarding the principles, process and legal consequences of mediation. In this extent, the mediator informs the parties about the employment disputes resolved through mediation as well as the form and the legal consequences of the agreement which is entered into upon the parties’ reaching an agreement and which functions as a court decree upon being annotated by the concerned court.
Following such information process, the method to be adopted in the mediation is determined by the parties at their discretion, provided that such method is not contrary to the mandatory laws. If the parties cannot determine a method themselves, the mediator conducts the mediation in consideration to the kind of the dispute, suggestions of the parties and the principles and procedures for rapid resolution of the dispute.
Parties may attend the mediation negotiations in person or by proxy. A party which does not attend the mediation negotiations without any excuse is specified in the final minute and, even if a favorable decision is taken for such party, all court expenses are imposed on it.
The mediator may meet the parties individually or together in order to reach a solution.
In the end of the mediation process, a minute is issued and signed by the mediator and the parties. In the minute, the result shall be clearly expressed as positive or negative.5. The Duration of Mediation
The mediator concludes an application within three weeks as from the date of his/her appointment. Where necessary, such period may be extended for one week as a maximum. In this regard, the dispute between the parties must be resolved the latest within a maximum period of four weeks.6. Enforement of the Mediation Decision
If the dispute is resolved through mediation, the parties may request attachment of an annotation concerning the enforceability of the minute (agreement) signed by the parties and the mediator. Such annotation concerning the enforceability of the minute may be requested from the court into whose duty and authority the said main dispute falls.
Giving an annotation of enforceability is a matter of non-contentious jurisdiction, and the respective examination may be made over the file. The scope of such examination is limited to the convenience of the agreement content for mediation and compulsory enforcement.
A minute (agreement) containing this annotation functions as a court decree. In other words, the parties may have a document functioning as a court decree without going to the court. 7. Calculation of the Mediation Fee
If the parties and the mediator cannot agree on the mediation fee, the Mediation Minimum Fee Tariff applicable at the date when the mediation process ends will be applicable. If the parties reach an agreement in the presence of the mediator, the fee cannot be less than the two-hourly fee amount specified in the first section of the Tariff. If the parties fail to reach an agreement in the presence of the mediator, fee of the first two hours of the mediation negotiations is covered by the Treasury and, unless otherwise agreed, the fee thereafter is covered equally by the parties as per the first section of the Tariff. The mediation fee covered by the Treasury and paid by the parties is considered as litigation expenses.
A party in need of legal aid to cover the mediation fee may enjoy the legal aid upon the decision of the judge of the civil court of peace at the place where the mediation office is located.