Mandatory Mediation in Turkey

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As of 1 January 2019; mediation became mandatory for court actions related to IP law including trade marks, designs and patents and including monetary/compensation claims.

Provisions related to mandatory mediation will not apply to court actions pending before first instance courts, district courts of appeal and the Court of Cassation. However; the parties may still apply to a mediator at their discretion for pending actions.  

If the parties cannot agree upon a mediator recorded in the registry then one party can apply to the mediation office where the competent court is located. Then mediation will be carried out by one of the registered mediators who will be appointed randomly.

Mediation will be completed
within six weeks of appointment of the mediator and such period can be extended
by up to two weeks. The mediator will complete the process if they cannot reach
the parties; if the sessions cannot be held due to the non-participation of the
parties; and whether or not the parties come to an agreement. In that case, the
mediator shall prepare the final minutes and inform the mediation office. The
Law also sets forth some sanctions for parties who do not attend to the first
session without a valid excuse related to litigation expenses and attorney’s
fees.

Penalty for not mediating

Since mediation is a clause for
the court action, it will be ex-officio taken into account by
the Court. It is compulsory for the plaintiff to add the final minutes to its
petition. If the plaintiff files the action without applying to the mediator
then the action will be rejected on procedural grounds.

If the plaintiff does not submit
the final minutes when filing the action then the Court will grant them one
week to submit the final minutes. If they do not do so, the action will also be
rejected on procedural grounds. If the parties come to an agreement, the final
minutes are regarded as having the same effect as a court decision and can be
enforced accordingly.

In preliminary injunction (PI)
requests, mediation is not mandatory. If a PI is granted before the action (ex-parte),
the main action shall be filed within two weeks of the party’s request for the
enforcement of the PI decision. This period will not run between the dates of
the application to the mediation office until the issuance of the final
minutes.

If the PI is requested within the
main action and the main action involves a monetary/compensation claim, then
the plaintiff shall still start the mediation process before commencing the
action. Especially for urgent matters; the IP right owner may consider
requesting the PI separate from and before the main action (ex-parte) if
a monetary/compensation claim will be included in the main action.

Impact of mandatory mediation

Since certain and short time
limits are regulated for the mediation process, it will not cause a serious
delay to the relevant court actions. However, since (i) the period provided for
the mediation is relatively short and (ii) most IP-related disputes require
expertise and it is unlikely that the randomly appointed mediator will be an
expert in them, mandatory mediation seems likely to remain as a procedure to be
followed rather than a useful tool to reach an amicable solution.

As the legislation’s aim seems to
be to extend the mandatory mediation to a broader range of areas of law, it is
possible that mediation will become mandatory in other types of IP-related
disputes.

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