Legal Nature of Agreement Documents Prepared at the End of Mediation Process2019, Erdemir&Özmen Avukatlık Ortaklığı
Legal Nature of Agreement Documents Prepared at the End of Mediation Process
As an alternative dispute resolution mechanism, mediation was included into our legal system in 2012. In a mediation process, it is aimed that the matter in dispute is resolved through an agreement reached between the parties, without applying to the competent court. A mediation process may be mandatory and constitute a prerequisite necessary to be completed before filing the lawsuit or may be voluntary. In cases where mediation is a prerequisite necessary to be completed before filing a lawsuit, such lawsuits filed without first applying to a meditator shall be dismissed. In voluntary mediation, the parties wish to resolve the matter in dispute by means of the mediation mechanism, not by referring the dispute to the competent court. As a matter of fact, according to the statistics, the rate of success in voluntary mediation is 97%.
At the end of a mediation process, the mediator does not render a decision. The mediator’s mission is to try to mediate the parties and is to ensure that the parties reach an agreement. Within this context, if the parties reach an agreement at the end of the process, the relevant agreement document will be prepared; however, if the parties fail to reach an agreement at the end of the process, a document indicating the failure of the mediation, i.e. a nonagreement document, will be prepared. While the mediation process, considered as a prerequisite necessary to be completed before filing a lawsuit, came into question for the disputes arising from laborers’ or employees’ receivables; the mediation process has, upon the new legal arrangement entered into force, become also a prerequisite necessary to be completed in advance, in respect of commercial disputes. Our newsletter will address the legal nature of the agreement document prepared in case the parties reach an agreement at the end of mediation process.
The document, prepared upon the parties reach an agreement, is regulated by the article 18 of the Law on Mediation in Civil Disputes. As per the article, upon the parties reach an agreement, a document incorporating the specifics of the agreement should be prepared. This document should state the agreement terms expressly and understandably and bear the signatures of the mediator and of the parties. The agreement document shall not constitute the subject matter of a lawsuit before a court, unless the annotation of enforceability is, prior to the lawsuit, obtained from the civil court of peace at the location of the mediator or, if the mediation process has been initiated in the course of the lawsuit, from the court where the lawsuit is heard. After the annotation of enforceability is obtained for the agreement document, the agreement document shall be deemed to be in force of a verdict, and enforcement proceedings may be initiated and carried out on the basis of the verdict i.e. the agreement document.
The decision numbered E. 2016/25300, K. 2016/21744 and dated 08.12.2016 rendered by the 9th Civil Chamber of the Supreme Court of Appeals mentions the matters necessary to be reviewed by the court after the request for annotation of enforceability.
“In the present dispute, the plaintiff company’s attorney has stated that an agreement on the determination and payment of the laborer’s receivables was reached between the plaintiff company and the defendant laborer before a mediator and that the document dated 04.12.2016 was issued in this regard, and the plaintiff company’s attorney has requested that the annotation of enforceability be granted for this document.
However, the defendant laborer has declared that his employment relationship was terminated by the plaintiff employer and that, at the time of the termination, the plaintiff’s employees kept him waiting for 7-8 hours, saying that the accountant would come and prepare the documents and the defendant laborer has further declared that, then, a person he had not seen before came and sat around a table and they made him sign the documents related to the termination of his employment relationship and that the mediator never talked to him and never asked a question to him and that he was not allowed to read the document bearing his signature and that a copy of the document was not delivered to him and that, although he was told that the amount, other than the portion deposited into the bank account, would be paid by hand 2 days later, the amount was not paid to him, and the defendant laborer has also declared that he does accept the agreement.
The local court has rejected the request for the annotation of enforceability due to this declaration, since it is argued that the agreement document was not issued in compliance with the law, and on the ground that this matter is disputed between the parties and that the grant of the mediation enforceability annotation is therefore not found acceptable.
…Given the issuance date of the mediation (agreement) document for the dispute between the employer and the laborer about the labor receivables and given the content of the declaration of release, the parties prepared the mediation (agreement) document of release nature in the absence of the laborer’s application and before it became the matter of dispute at a time when the parties might not act freely thereon. This document of release nature, which was obtained, is not convenient for mediation by its date and content and for compulsory enforcement by its nature.
In the light of the grounds explained above, since it has been understood that it is not possible to grant annotation of enforceability for the agreement document in the file; it has been unanimously decreed, on 08.12.2016, that the appellate objections are hereby rejected and that the local court’s decision, which is correct in respect of its conclusion, is hereby APPROVED on this ground.”
The same article also prescribes an exception to the request for annotation of enforceability before the court. The article 18/4 of the Law on Mediation in Civil Disputes is as follows: “An agreement document, signed jointly by the parties, their attorneys and the mediator, shall be deemed to be a document in the force of verdict, without seeking the annotation of enforceability”. Accordingly, in case the conditions prescribed by the article are satisfied, in other words, in case the parties, their attorneys and the mediator sign the agreement document, the agreement document shall become in the force of verdict without needing anything else. After this legal arrangement, as with the Supreme Court’s Decision mentioned above, the content of the document will not be assessed, and the document will be deemed to be a verdict in case it bears the signatures of the parties.
The significance of the agreement document results from the following points: The matters on which the parties agree as well as the relevant details are inserted into the agreement document by the parties; and it is not possible to file a lawsuit in respect of the matters on which they agree. This is because, the parties are bound by the matters on which they agree in the mediation negotiation process, and the parties are not entitled to file a lawsuit subsequently in respect of these matters.
In conclusion, the mediation process may be carried out mandatorily or on demand. At the end of the negotiations, the parties will either reach an agreement or fail to reach an agreement. In case the parties fail to reach an agreement, a lawsuit may smoothly be filed in respect of the dispute. In case the parties reach an agreement, it is necessary to obtain the annotation of enforceability. However, pursuant to the new articles added, this matter is facilitated, the agreement document prepared at the end of mediation is deemed to be in force of a verdict, the filing of a lawsuit subsequently in respect of the agreed matters is prevented and thereby, it is aimed to reduce the courts’ workload.