1. Content of the Decision

The Constitutional Court of Turkey (“CCT”), in its decision numbered 2023/160 (Merits) and 2024/77 (Judgment), published in the Official Gazette dated April 18, 2024 (No. 32521), annulled certain provisions of Article 18/A(11) of Law No. 6325 on Mediation in Civil Disputes (“Mediation Law”). The Court found that holding parties who fail to participate in mediation liable for all litigation costs and depriving them of attorney's fees, even if they prevail partially or entirely in the subsequent lawsuit, constitutes an excessive restriction on fundamental rights and freedoms.

Article 18/A(11) of the Mediation Law stipulated that a party failing to attend the first mediation meeting without a valid excuse would be required to bear all litigation costs, even if partially or wholly successful in the subsequent lawsuit. Additionally, such a party would not be entitled to attorney's fees.

The Çorum Consumer Court, deeming these provisions unconstitutional, requested a concrete review by the Constitutional Court. After examining the case, the CCT determined that these provisions imposed disproportionate limitations on fundamental rights and freedoms, infringing upon the right to property and the right to seek legal remedies. Consequently, the Court annulled the relevant provisions.

2. Evaluation by the Constitutional Court

The Constitutional Court noted that in disputes where mediation is a prerequisite for litigation, parties retain the right to seek judicial resolution. Consequently, a party's failure to participate in the mediation process should not automatically equate to a refusal to settle the dispute.

The Court emphasized that imposing all litigation costs on a party failing to attend mediation without a valid excuse—even if they ultimately prevail in the lawsuit—excessively restricts the right to access the courts, thereby creating a disproportionate barrier.

Additionally, the CCT highlighted the connection between litigation costs, attorney's fees, and the constitutional right to property. It reiterated that the right to access the courts and initiate legal proceedings is a fundamental right protected by the Constitution. The challenged provisions were deemed to unduly restrict the right to seek legal remedies and, therefore, found unconstitutional.

3. Impact of the Constitutional Court’s Decision

The annulment of these provisions modifies the obligations of parties who fail to attend mediation. The rule that a party absent from mediation without a valid excuse would bear all litigation costs and lose the right to claim attorney's fees, even if they ultimately prevail in the lawsuit, has been invalidated. This decision represents a significant change in the legal framework for mediation, particularly concerning its effectiveness and fairness.

4. Effective Date and Consequences of the Annulment

The Constitutional Court's annulment decision will take effect nine months after its publication in the Official Gazette, i.e., on January 18, 2025. During this interim period, the current provisions will remain in force. After the effective date, the annulled provisions will no longer apply. This change impacts all legal disputes subject to mandatory mediation, eliminating the obligation for a non-participating party to bear litigation costs or forfeit attorney's fees if they are ultimately successful in court.