EXCEPTIONS FOR LITIGATION MEDIATION PROCESSES
İçindekiler
Toggle- Exceptions to Mediation in Lease Disputes
Article 18/B was added to the Law No. 6325 on Mediation in Civil Disputes (‘HUAK’) on 01.09.2023 with Article 37 of the Law No. 7445 on the Amendment of the Enforcement and Bankruptcy Law and Certain Laws, and although it has been made compulsory to apply to a mediator before filing a lawsuit in all lease disputes that are eligible for mediation in subparagraph 1/a of the relevant article, exceptions for special cases have been reserved. In this context
- This provision, which introduces mediation as a condition for litigation in lease disputes, in cases filed and pending before 01.09.2023,
- In the eviction of leased immovable properties in accordance with the Enforcement and Bankruptcy Law No. 2004 (‘EBL’) by way of execution without writ of execution , (In the event that the lessor applies for cancellation of the objection at the Civil Court of Peace, and again in the event that the lessee files a negative declaration lawsuit at the Civil Court of Peace to determine that he is not indebted pursuant to Article 72 of the EBL, and in cases where he does not object to the proceedings or has to pay a money to the lessor that he does not owe due to the removal of his objection. It is accepted that it is obligatory for the lessee to apply for mediation before the negative determination lawsuit to be filed in the Civil Court of Peace to determine that he is not indebted pursuant to Article 72 of the EBL, and before the reclamation lawsuit to be filed in the Civil Court of Peace in cases where he does not object to the proceedings or has to pay the lessor a money that he does not owe due to the removal of his objection[1].)
- There is no obligation to apply for mediation as a condition of litigation for the removal of the objection to be applied in the Enforcement Court within the scope of a lease dispute arising from the issues that both parties are merchants and concern the commercial enterprise of both parties. (In terms of the cancellation of the objection, negative assessment and reclamation cases to be filed in the Civil Court of Peace, it is considered mandatory to apply for mediation as a condition of litigation).
- Exceptions to Mediation in Consumer Disputes
Article 73/A of the Consumer Protection Law No. 6502 (‘CPL’) sets out the exceptions to the scope of mandatory mediation in consumer disputes. In this context
- In disputes within the scope of the duty of the Consumer Arbitration Committee and in disputes to be seen in the Provincial or District Consumer Arbitration Committees, which are in charge of disputes with a value of less than 104,000 TL in the applications to be made for 2024, as stated in the Communiqué on Increasing the Monetary Limits in Articles 68 of the TKHK and Article 6 of the Regulation on Consumer Arbitration Committees,
- In objections to the decisions of the Consumer Arbitration Committee,
- Except for the provisions regarding unfair commercial practices and commercial advertisements within the scope of Article 73/6 of the LPPD, in cases that concern consumers in general and in cases where there is a danger of a situation contrary to the LPPD, in cases filed with the Consumer Court for obtaining a preliminary injunction to prevent or stop this or for the detection, prevention or stopping of the unlawful situation,
- In cases regarding the cessation of production or sale of a mass-produced good and the recall of the goods within the scope of Article 74/1 of the TKHK,
- In cases filed by consumer organisations, relevant public institutions and organisations and the Ministry of Customs and Trade with the Consumer Courts in order to obtain a preliminary injunction for the prevention or cessation of a situation that concerns consumers in general and in cases where there is a danger of a situation contrary to the CPLPL, except for the provisions regarding unfair commercial practices and commercial advertisements, or for the detection, prevention or cessation of the unlawful situation,
- In disputes that are in the nature of consumer transactions and arising from the immovable property,
- There is no obligation to apply for mediation as a condition of litigation in pending cases.
- Exceptions to Mediation to be Applied in Disputes within the Scope of Labour Law
- Article 3, Paragraph 3 of the Labour Courts Law No. 7036 titled ‘Mediation as a condition of litigation’ stipulates that ‘The provision of the first paragraph shall not apply to material and moral compensation claims arising from occupational accidents or occupational diseases and related determination, objection and recourse cases.’Accordingly, it is seen that there is no obligation to apply to the mediator before filing a lawsuit in material and moral compensation claims arising from occupational accidents or occupational diseases and related determination, objection and recourse cases. Therefore, material and moral compensation cases arising from occupational accidents or occupational diseases, as well as related determination, objection and recourse cases can be brought directly to court.
- Exceptions to Mediation in Commercial Disputes
- Article 5/A of the Turkish Commercial Code No. 6102 (‘TCC’) titled ‘Mediation as a condition of litigation’ states that ‘In the commercial lawsuits specified in Article 4 of this Law and other laws, in the receivable, compensation, cancellation of objection, negative determination and reclamation lawsuits whose subject matter is a certain amount of money, it is a condition of litigation that the mediator is consulted before the lawsuit is filed.’ In this context, mediation is not considered as a condition of litigation in cases other than the commercial lawsuits mentioned in the relevant article, receivables, compensation, cancellation of objection, negative assessment and recovery lawsuits, and the cases written in Article 4 of the TCC.
- Exceptions to Mediation to be Applied in Disputes Regarding Dissolution of Partnership
- Article 37 of the Law No. 7445 on the Amendment of the Enforcement and Bankruptcy Law and Certain Laws introduced a mandatory mediation requirement for dissolution of partnership cases. According to this regulation, the mandatory mediation process for the dissolution of partnership cases started on 01.09.2023 and there is no requirement to apply for mediation in pending cases for dissolution of partnership filed before this date.
Lastly
Article 18/A-18 of the HUAC states that ‘In cases where there is an obligation to resort to arbitration or another alternative dispute resolution method in special laws or where there is an arbitration agreement, the provisions regarding mediation as a condition of litigation shall not apply. ’ From this provision, it is understood that mediation is not mandatory in cases where arbitration or another alternative dispute resolution method is agreed in the contract or specified in the law in the disputes listed above.
[1] Süleyman Burak Gündoğdu, ‘Some Thoughts on the Application of Mediation as a Condition for Litigation in Lease Disputes’, Necmettin Erbakan University Journal of Faculty of Law (NEÜHFD), Vol. 6, No: 2, 2023, p. 854, E-ISSN: 2667-4076.