This special session proposal examines the impact of mandatory mediation on the effectiveness of labour law, using Türkiye as an example. Mandatory mediation was introduced in 2018 to resolve individual labour disputes faster and ease the judiciary’s workload. Mediation is not only a dispute resolution method, its practice affects all employees and has significant effects on their social positions and working conditions, influencing both their needs and how they exercise their rights in labour relations.
This session socio-legally examines mediation in individual work disputes, focusing on participants’ experiences. It will interpret the mediation practice from the viewpoints of employees, comparing across different types of work, and discuss legal practice based on the analysis of court decisions. In this aspect, it is compatible with the 4th track of the conference. Especially in terms of employees’ access to justice, the mediation practice affects and transforms the legal and institutional frameworks that regulate and implement labour rights. This analysis will explore whether mediation bolsters reforms to improve working conditions or undermines employees’ access to fundamental rights and justice. The goal is to provide data and a starting point for ensuring rights for formal, informal and migrant employees. This proposal comprehensively analyzes Turkish mediation, offering insights for policy and other similar countries.
The assumption that the parties are equal in mediation can be questioned where there is inequality between the parties in employment relations. Mediation, as a legal mechanism designed for equal parties, is imposing to an unequal situation. Power imbalances, such as employee’s economic weakness, lack of sources to finance the litigation or an urgent need for payment, and lack of knowledge about their rights can reduce their bargaining power. Employers’ superior position makes it easier for them to abuse mediation. Concerns also arise regarding the impartiality of mediators chosen by employers. The confidential nature of mediation can weaken the strengthening effect of courts, especially visibility, potentially masking social injustice data, as mediation agreements do not set precedents for other employees. They may feel pressured to accept monetary settlements on issues that are difficult to bargain over or prove, such as discrimination, being qualified as employees or sexual harassment. Mandatory mediation can also restrict court access, as the plaintiff has to prove that an agreement could not be reached in the mediation. This research will verify concerns and propose mediation practices to ensure effective labor law and meet employee needs.
We recommend increasing employees’ legal literacy, compulsory representation of employees with a lawyer, strengthening legal aid, and controlling mediator selection, for an inclusive and accessible mediation process that ensures the right to a fair trial and decent work, addressing the shortcomings and barriers in realizing and strengthening employees’ rights.
The proposed session will present findings from an ongoing project (No: 124K758) supported by Scientific and Technological Research Council of Türkiye (TÜBİTAK). The research does not deal with mediation from a positivist legal perspective and employs a socio-legal approach based on grounded theory. Data are collected from three primary sources:
- In-depth interviews with employees in different sectors and employment types (10 of 40 interviews completed with partial analysis)
- A survey of 385 employees measuring satisfaction with mediation experiences (to be completed in early April)
- Analysis of Court of Cassation and appeals court decisions since 2018, examining the prominent issues, the trends, and the controversial issues in doctrine and in the courts decisions such as nullity, defect of consent, unfair advantages, revocability, and the legal qualification of agreements reached before the mediator.
The goal is to measure mediation’s effectiveness in labour law and to uncover its fundamental transformation of labour relations through legal practice.
Individual presentations will cover various aspects of mandatory mediation:
- Assoc. Prof. Dr. Duygu Hatipoğlu Aydın, from Hacettepe University Faculty of Law, Department of Philosophy and Sociology of Law, will analyze how labor relation changes affect dispute resolution, comparing the mediation process with court proceedings based on employees’ experiences with both.
- Dr. Çağla Erdoğan, from Ankara University Faculty of Law, Department of Labour and Social Security Law, will present research data showing how mandatory mediation can be used manipulatively to serve employers’ interests.
- Assist. Prof. Dr. Orhan Emre Konuralp, from Kırklareli University Faculty of Law, Department of Civil Procedure and Enforcement and Bankruptcy Law, will analyze the relationship between the mandatory mediation and the right to access to court.
- PhD Candidate Münevver Temir, from Erzincan Binali Yıldırım University Faculty of Law, Department of Labour and Social Security Law, will address difficulties in protecting fundamental rights in labour law through mediation.
- PhD Candidate Hasan Karakaya, from Bursa Uludag University, Department of Labour Economics and Industrial Relations, and PhD Candidate Burak Yücekaya, from Sivas Cumhuriyet University, Faculty of Law, Department of Philosophy and Sociology of Law will assess the current and potential effects of mandatory mediation on informal employees.
