Mediation was first practised in Turkey following publication of the Code on Mediation in Civil Disputes on June 22, 2012. Some fundamental principles of mediation are:
- Unless otherwise agreed, the parties and the mediator are obliged to keep the information and documents subject to the process confidential. Violation of the confidentiality obligation has been criminalised.
- In principle, in civil actions or arbitration proceedings, the use of documents which were submitted during mediation is prohibited.
- Should the parties reach an agreement, an annotation may be obtained from court regarding the enforceability of the agreements that were issued. Agreements signed jointly by the mediator, the parties and their attorneys, however, have the force of a court judgment without requiring any such annotation.
- The parties may attend meetings in person or through their representatives. Attorneys must be appointed with power of attorney that clearly expresses authorisation for mediation. Also, upon parties’ clear consent, experts such as trademark/patent attorneys may also attend the meetings, but they cannot represent the parties.
- No litigation may be initiated in connection with matters on which an agreement was reached as a result of mediation.
Mediation as a cause of action
According to the Turkish Commercial Code, disputes arising from the IP Law are commercial cases. According to article 5/A which was added to the Turkish Commercial Code and entered into force on January 1, 2019, resorting to mediation before litigation is mandatory in commercial disputes which concern the payment of an amount of money.
“RESORTING TO MEDIATION BEFORE LITIGATION IS MANDATORY IN COMMERCIAL DISPUTES WHICH CONCERN THE PAYMENT OF AN AMOUNT OF MONEY.”
Since January 1, if this type of litigation is initiated without first resorting to mediation, it shall be dismissed without further examination. This arrangement also covers disputes arising from IP Law.
The mediation process begins with the concerned party filing an application with the mediation office at the competent courthouse.
The term of the mediation procedure is six weeks following the appointment of a mediator where it may be extended for a further two weeks under compelling circumstances.
If the parties do not reach an agreement, the final mediation protocol must be attached to the lawsuit petition. Otherwise the court grants one week for submission of the protocol, and the case shall be dismissed if the protocol is not submitted by that time.
Unless otherwise agreed, fees are shared equally by the parties whether they reach an agreement or not. The mediator’s fee and the mandatory expenses made during the mediation are considered as litigation costs, if a litigation is initiated due to the failure of mediation.
A party failing to attend the first mediation session without a valid excuse will bear all litigation costs if a court action is subsequently filed regarding the dispute, even if such party wins the court action.
The statute of limitations regarding the subject of the dispute is suspended, and the period of prescription stayed, for the period from the date of the application for mediation to the end of the mediation.
Previously, a preliminary injunction request would frequently accompany the main court case to ensure the functionality of the final judgment in commercial disputes concerning monetary claims. However, as of January 1, 2019, to fulfil the function of the injunction, we recommend first requesting the injunction from the court and, after it is granted, applying for mediation with respect to the main claim.
In disputes other than those specified above, parties are free to apply to mediation, to continue with it or to terminate it.
An application may be made for mediation before or after a litigation is initiated. The court cannot force the parties to apply to mediation but may invite them to do so. A party is considered to have declined other party’s offer to apply to mediation if such offer is not accepted within 30 days.
The mediation process before litigation starts on the date of the first protocol. The mediation process after litigation has been initiated starts on the date when the parties inform the court of a joint will to apply for mediation. In these cases, the court postpones litigation for a maximum of six months.
Unless otherwise agreed, the mediation fee and costs are shared equally by the parties.
The mediation period is not taken into consideration in calculating the statute of limitations and the period of prescription.
Since January 10, 2017 on which the IP Code No. 6769 entered into force, Turkish Trademark and Patent Office is able to invite parties to discretionary mediation in opposition cases.
Mediation which aims at helping parties to find common ground in line with a win-win approach was welcomed in the Turkish IP world. There are great expectations that it will ensure expeditious resolution of litigation.
First published on WIPR’s website on 02 April 2019.