MANDATORY MEDIATION IN COMMERCIAL LAWSUITS

Mediation, as one of the alternative dispute resolution methods, has been effectively implemented in a short period since its adoption in our country. One of the most significant reasons for the rapid acceptance of the mediation method is undoubtedly the regulation making mediation a “prerequisite for litigation” in certain disputes. This means that, in some cases, it is mandatory to apply for mediation before filing a lawsuit.

Initially, with Article 3 of the Labor Courts Act No. 7036, it became obligatory to apply for mediation before filing lawsuits concerning employee and employer receivables and compensation arising from individual or collective labor agreements, as well as for reemployment claims.

Later, as of January 1, 2019, with the addition of Article 5/A to the Turkish Commercial Code No. 6102, mediation also became a prerequisite in commercial disputes before initiating a lawsuit. This expanded the scope of mandatory mediation significantly.

FOR WHICH COMMERCIAL LAWSUITS IS MEDIATION MANDATORY?

According to Article 5/A of the Turkish Commercial Code No. 6102, in lawsuits defined as “commercial lawsuits” under Article 4 of the Turkish Commercial Code and other laws, if the subject of the dispute involves the payment of a monetary amount or a compensation claim, it is mandatory to apply for mediation before filing a lawsuit.

It is important to note that not all commercial lawsuits, but only those involving monetary claims or compensation, are subject to this requirement.

Article 4 of the Turkish Commercial Code classifies commercial lawsuits into two categories:

Absolute Commercial Lawsuits: According to Article 4 of the Turkish Commercial Code, regardless of whether the parties are merchants, disputes arising from matters regulated by the Turkish Commercial Code and those listed in the first paragraph of Article 4 — as well as those regulated by the Turkish Code of Obligations, Turkish Civil Code, and other special laws — are considered absolute commercial lawsuits.

Examples include: Disputes related to joint-stock companies, limited liability companies, promissory notes, checks, contracts of carriage for goods and passengers (as regulated in the TCC), If these disputes involve a monetary claim or compensation, mediation is a prerequisite.

Even if not regulated directly in the TCC, disputes defined as commercial lawsuits in other laws but mentioned in TCC Article 4 are also considered absolute commercial lawsuits. These include:

- Disputes arising from pledge-backed lending under the Civil Code,

- Disputes regarding transfer of assets or enterprises, mergers, and transformations under the Code of Obligations,

- Disputes related to non-compete agreements,

- Disputes regarding publishing agreements,

- Disputes arising from letters of credit or letters of guarantee,

- Disputes related to commission contracts,

- Disputes involving commercial representatives, agents, and other commercial assistants,

- Disputes under Intellectual Property Law,

- Disputes arising from exchanges, fairs, markets, bonded warehouses, and other trade-specific locations,

- Disputes concerning banking, lending, and financial services,

- Disputes that are considered commercial by special provisions in other regulations.

Relative Commercial Lawsuits: These are lawsuits arising from matters related to the commercial enterprises of both parties, provided both are merchants.

In addition, disputes arising from remittance, safekeeping, and intellectual and artistic property rights are also considered relative commercial lawsuits if at least one party’s commercial enterprise is involved.

If a monetary claim or compensation is at issue in a relative commercial lawsuit, then mediation before litigation is also mandatory.

It should be noted that if debt collection proceedings are initiated regarding a commercial receivable and the debtor objects, then the lawsuit for annulment of the objection is also subject to mandatory mediation.

Similarly, if a negative declaratory action is filed regarding a commercial debt (claiming that no such debt exists), mediation is a prerequisite before initiating the lawsuit.

While parties have discretion over continuing and concluding the mediation process, applying for mediation is mandatory in cases where it is a litigation prerequisite.

When mandatory mediation is initiated in commercial lawsuits, the mediator must conclude the process within six weeks from the date of appointment. If necessary, this period can be extended by the mediator once for up to two additional weeks.