Mediation which is one of the alternative ways of settlement of disputes is a process which constitutes bringing together the parties in dispute, under the supervision of a third party and aiming at settling the dispute with the consent of the parties. As stipulated in article 3 of the Law no. 6325 on Mediation for Legal Disputes, parties are free to resort to mediation, to continue, conclude the process, or renounce to this process. In other words, it is essential that the parties resort to mediation of their own free will. Although this is the general principle; first in the regulation dated 01/01/2018, for lawsuits related to worker’s or employer’s claim and indemnity based on employment contracts and for reemployment lawsuits; and subsequently, in the regulation enforced on 01/01/2019, for commercial lawsuits involving receivable claims and demand for compensation, recourse to mediation was set as a prerequisite of an action. By virtue with these regulations, the mediation process which was arbitrary became a mandatory preliminary process prior to the examination of the dispute by courts, irrespective of the parties’ will.

As the causes of action constitute prerequisite for the examination of the dispute by courts and arising from public order, they are taken into consideration ex officio by the court, at any stage of the trial, and the parties can always argue that a procedural requirement has not been observed . With the establishment of mediation as a prerequisite of an action, the legislator paved the way for lawsuits being rejected if this requirement has not been fulfilled. This point is expressed as follows in article 18/A-2 of the Law no.6325 on Mediation in Legal Disputes: “In case it is determined that a lawsuit has been filed without resorting to mediation procedure, the lawsuit shall be rejected on procedural grounds, for failing to fulfill a procedural requirement, without the need for any action.”

The decision of the Court of Appeal 11th Civil Chamber, dated 17.02.2020, no. 2020/197 E., 2020/1578 K., in case of accumulation of lawsuits, in respect of a lawsuit for which there is no obligation to resort to mediation filed together with a lawsuit which requires mediation, lawsuit can be filed without resorting to mediation.

In the case which constituted the subject matter of the Court of Appeal’s decision, the plaintiff requested the determination of the lack of valid partnership relation and the collection of the money paid to this end, the court of first instance rejected the lawsuit on procedural grounds, indicating that due to the nature of the lawsuit, application should be made to a mediator prior to filing the lawsuit, as a procedural requirement. The appeal against the decision has also been rejected by the Regional Court of Justice on the same grounds. The Court of Appeal 11th Civil Chamber concluded that in the dispute examined, there is an “accumulation of lawsuits” as regulated in article 110 of the Code of Civil Procedure, although the matter in dispute is the payment of a certain amount and the collection lawsuit is subject to mediation as a procedural requirement, the request for determination of the lack of valid partnership relation cannot be considered within this scope, and therefore the collection lawsuit filed together with a lawsuit which is not subject to mediation will not be subject to mediation as a procedural requirement.

The “accumulation of lawsuits” mentioned in the decision of the Court of Appeal is defined as the possibility for the plaintiff to state in the same lawsuit petition the several principal independent claims that it has against the same defendant. What is important here is that the claims brought in the same lawsuit petition must be independent claims. The inevitable consequence of this situation is that a claim which is subject to mediation when brought on its own will remain within the scope of mediation when filed jointly with a lawsuit which is not subject to mediation as a procedural requirement. Because, in case of backlog of lawsuits, although there is a single lawsuit petition at hand, there are in fact distinct and independent lawsuits in the number of claims specified in the lawsuit petition, and during the judgment, each lawsuit (claim) will be subject to separate action and decision, as also indicated in the decisions of the Court of Appeal (Supreme Court Assembly of Civil Chambers decision no.2013/2446 E., 2015/1445 K., dated 27.05.2015).

In terms of its legal concept, the backlog of lawsuits does not have the effect of eliminating the causes of action which are prescribed by the legislator and which pertain to public policy. For this reason, until a new regulation is issued, it must be admitted that a lawsuit filed jointly with a lawsuit which does not require mediation as a prerequisite for examination by courts, and which is within the scope of mandatory mediation, is subject to mediation as cause of action, contrary to the decision of the Court of Appeal which we examined here.