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The Compulsory Mediation System In Cases Between Employers And Employee In Turkish Labor Law

With the Law No. 7036 on Labor Courts published in the Official Gazette No. 30221 on 25 October 2017, fundamental changes were brought to the resolution of labor law disputes and this Law abolished the Labor Law No. 5521.One of the important changes introduced by this Law is that the mediation system will be used in the settlement of disputes arising from labor law between the employee and the employer.In other words, mediation will be used primarily for the solution of the problems between the employer and the employee and the problems could not be solved will be heard before the courts.

Article 3 of the Law stating that,in cases filed for financial claims and compensations of employee or employer and reinstatement based on law or an individual or collective labor agreement, application to mediation process is a pre-condition of litigation, it is emphasized that mediation is adopted only as a pre-condition of litigation in the aforementioned cases.Within this scope, as of January 1, 2018, the date of the related article came into force, it has become mandatory to apply to mediation in cases filed with the employee’s or employer's financialclaim, compensation and reinstatements request.According to the same article as well, it is understood that there will be no compulsory application for mediation in order to file cases for pecuniary and non-pecuniary damages resulting from occupational accidents or occupational diseases and also for the determination, appeal and recourse cases related to these claims.

The types of disputes in which the compulsory mediation system can and cannot be used are also shown in the table below.

Types of Conflicts in which Compulsory Mediation System can be used

Types of Conflicts in which Compulsory Mediation System cannot be used

-Employee / employer debts/compensation arising from the law

- Employee / employer debts / compensation arising from individual employment contract

- Employee / employer debts/ compensation arising from collective labor contract

- Cases of reinstatement

-Pecuniary / non-pecuniary damages arising from work accidents

- Pecuniary / non-pecuniary damages arising from work disease

-Determinations, objection and recourse cases related to pecuniary / non-pecuniary damages arising from work accident or disease

In case the mediationprocess was terminated due to the fact that one of the parties did not attend the first meeting without a valid excuse, the party not participating in the meeting shall be held responsible for the whole of the costs of the judicial proceedings, even if he has partially or totally been justified at the endof the judicial proceedings.

The parties are required to conclude the mediation process within three (3) weeks and it is envisaged that the process may be extended for one (1) week in case of compulsory circumstances. Thus, it is expected that the mandatory mediation system arising from labor law will be terminated within a maximum of four (4) weeks.

Finally, it should be noted again that if a dispute is settled as a result of mediation, no judicial proceedings shall be brought on this dispute.However, in disputes that could not be resolved through mediation that is not having been concluded, the right of the parties to file a case is reserved and the possibility of bringing these matters before the judiciary is left open

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