I. What is Mediation?
Mediation is a process where parties experiencing a legal dispute come together for the resolution of their conflict. The parties meet with a neutral and independent mediator who facilitates communication and negotiation between them. This method serves the friendly resolution of the dispute, allowing the parties to find the best solution that aligns with their interests.
Mediation is divided into voluntary mediation and mandatory mediation. In voluntary mediation, parties are free to approach a mediator, continue the process, conclude it, or abandon it. Mandatory mediation requires parties to seek mediation with a mediator before filing a lawsuit.
In cases of rental disputes and disputes related to the dissolution of partnerships, mandatory mediation is required. Similarly, in conflicts between employers and employees, as well as in commercial disputes, mandatory mediation is mandated. Additionally, in consumer disputes, it is obligatory to seek mediation before initiating legal proceedings.
During the mediation process, discussions between the parties are kept confidential. Unless agreed otherwise by the parties, the mediator must maintain the confidentiality of the information, documents, and records obtained during the mediation.
The mediator has the right to request fees, expenses, and advances for their mediation services. Unless otherwise agreed, the mediator’s fee is determined according to the Mediator Minimum Fee Tariff. The mediator’s fee and expenses are shared equally by the parties.
II. Mediation Processes in Turkey
A) Initiation of the Mediation Process
The mediation process is conducted by mediators registered in the mediator’s registry, who are neutral and independent. To initiate the mediation process, one must first apply to the mediator. Parties are required to resort to mediation either before filing a lawsuit or during the ongoing trial of the case. If it is a mandatory mediation application, the process begins with applying to the mediation office located where the competent court is.
If mediation is sought before filing a lawsuit, it is considered as voluntary mediation. The process begins when the parties are invited to the first meeting by the mediator and agree to continue the process. The process officially commences on the date when this agreement is documented with a report.
In cases where a lawsuit has been filed, parties may voluntarily apply to mediation. In such a situation, the process can start when the court invites the parties to mediation, and the invitation is accepted by the parties. The process begins from the date these statements are recorded during the trial. Additionally, the parties can declare in writing to the court outside the trial that they have agreed to apply to mediation.
B) Mediation Process
The mediator initially communicates with the parties, as well as their legal representatives or attorneys if any, to inform them about the mediation process and its outcomes. Subsequently, the mediator invites the parties to the first meeting as soon as possible. On the day of the first meeting, the parties and the mediator come together. The mediator delivers an opening statement, and then, observing the principle of equality, the parties present their arguments. During this stage, the parties convey their demands to each other and negotiate for the resolution of the dispute. The parties may find the most suitable solution for their interests at this stage. If they cannot reach a resolution, they may also accept a solution proposed by the mediator. In this way, they can conclude the mediation process with an agreement. If they cannot reach an agreement, they can officially terminate the mediation process without reaching an agreement.
C) Conclusion of the Mediation Process
The mediation process concludes when the parties reach an agreement or fail to reach one. It also ends if the mediator determines that further effort is unnecessary. Additionally, it concludes if one of the parties withdraws from the mediation process or if it is determined that the dispute is not suitable for mediation.
Parties who cannot reach an agreement during the mediation process can file a lawsuit after the process concludes. If there is an existing lawsuit, they can resume the litigation from where it left off. In mandatory mediation processes, the conclusion of the process is documented with the final report. If the parties fail to reach an agreement, and they intend to file a lawsuit, they can attach the final report to the lawsuit petition.
If the parties reach an agreement, it is documented with the final report at the end of the mediation process. The scope, content, rights, and obligations of the agreement are determined by the parties. Once an agreement is reached at the end of the mediation period, the parties cannot file a lawsuit regarding the same matter.
III. Mediation as a Mandatory Precondition in Rental Disputes
1. Legal Regulation
By the addition of Article 18/B on March 28, 2023, to the Law on Mediation in Civil Disputes, it has been regulated that mediation is a mandatory precondition for filing a lawsuit in rental disputes.
According to Article 18/B of the Law on Mediation in Civil Disputes, “In the following disputes, it is a mandatory precondition for filing a lawsuit to have applied to mediation before filing a lawsuit:
a) Disputes arising from the lease relationship, excluding provisions regarding the evacuation of leased immovables through non-contentious execution under Law No. 2004.
b) Disputes related to the partition of movable and immovable properties and the elimination of joint ownership.
c) Disputes arising from Law No. 634 dated June 23, 1965, on Condominium Ownership.
ç) Disputes arising from neighbor rights.
With the enactment of Article 18/B, as of September 1, 2023, it has become mandatory to apply to mediation before initiating legal proceedings related to rental disputes. If you file a lawsuit without applying to mediation first, your lawsuit will be dismissed.
2. In Which Rental Disputes is Mediation Not Required?
According to Article 18/B of the Law on Mediation in Civil Disputes, the provision “excluding provisions regarding the evacuation of leased immovables through non-contentious execution under Law No. 2004” is included. Therefore, in these cases, legal proceedings can be initiated without applying to mediation.
If the landlord has a valid and legally compliant eviction commitment, this commitment can be subject to execution proceedings without the need to apply to mediation for the evacuation of the leased property. The tenant can object to the execution proceedings. If the tenant objects to the signature or date in the eviction commitment, a lawsuit for the annulment of the objection must be filed. In this case, mediation must be applied before initiating the lawsuit. However, even if the debtor objects to the execution proceedings, they may not object to the signature or date. In this case, there is no need to apply to mediation before lifting the objection and filing an eviction lawsuit.
Applying to mediation is not necessary for initiating execution proceedings due to the tenant’s partial payment of rent. The situation may arise where the tenant does not pay the partial rent amounts within 30 days. In this case, there is no need to apply to mediation before filing an eviction lawsuit in the enforcement court.
Objections to be raised in enforcement courts for the removal of objections and eviction lawsuits may be considered. In this case, applying to mediation is not a mandatory precondition. However, mediation must be applied before filing all other lawsuits related to rental disputes.
3. What is the Timeframe for Applying to Mediation?
In rental dispute cases, there are specific timeframes that parties must adhere to when initiating legal proceedings, and these timeframes are also applicable to the mediation process.
For example, in cases where an eviction lawsuit is filed due to necessity, the timeframe is crucial. The landlord must file the lawsuit within 1 month from the date the lease agreement is terminated. Let’s consider a scenario where the lease agreement’s termination date is 15/09/2023. In this case, the landlord must apply to the mediation process within 1 month, by 15/10/2023, and then proceed to file the eviction lawsuit.
During the mediation process, the timeframe is paused from the date of applying to mediation until the date the last report is issued. The period during which the last report is issued stops the statute of limitations until that date. Thus, the prescriptive period does not elapse.14
For the landlord, the 1-month timeframe is paused from the date of applying to mediation until the date mediation concludes. The timeframe for filing a lawsuit will start anew from the date the mediation process concludes.
Ece Deniz Vardar
Lawyer / Attorney in Turkey
Landlord Tenants Attorneys in Turkey
Call Us : +90 212 909 86 34
Sen Mail : info@ballawyer.com
