Doga Eralp, American University
The Turkish Labor Mediation Law, established in January 2018, works at the expense of employees. The law has been utilized as a mandatory mechanism with the objective of providing labor flexibility, cutting down on court cases and speeding up the judicial process. The findings in this paper suggest that the law only served to make an already unequal relationship worse. The high rates of success reported by the Turkish Ministry of Justice are misleading and overlook the skewed process that destroyed the credibility of mandatory labor mediation in Turkey.
This article used a variety of research instruments to explore the current state of Turkey’s Labor Mediation Law and its impact on the active workforce, most of whom are individual workers employed in the service sector and manufacturing. Most of the data used in this article has been driven from secondary sources, including a survey conducted on the Turkish labor mediators, excerpts from interviews conducted with attorneys who act as mediators, labor union officials, a speech given by the head of the Turkish Bar Associations on the issue of Turkey’s labor mediation. Additional interviews were conducted over the internet using social media communication tools such as WhatsApp and Zoom with two attorneys, one representing workers in labor courts, another practicing labor mediation, and with a prominent labor activist in 2020. Interviews were designed as semi-structured, recorded online and later transcripted.
There are a number of limitations to conducting research on this particular topic. First of all, while the primary researcher-author’s academic expertise is on mediation, the author is not an expert on conducting legal research and may have missed nuanced language in the Turkish legal language, or certain legal lexicon may have been lost in translation to English. Secondly, the data on labor mediation cases has been rather thin, limited to official numbers uploaded on the Turkish Ministry of Justice’s Mediation Department website that only boasted the number of successful cases and overall rate of success (meaning the cases that concluded with an agreement). The author asked for further detailed data on the distribution of the labor mediation cases across the variety of disputes addressed using the Turkish Government’s official “e-devlet” (E-state), an online platform that is designed to enact the freedom of information act for Turkish citizens, to Ministry of Justice along with Turkish Statistical Institute, but received no feedback. This inevitably made the use of secondary data that drew on anecdotal information on labor disputes the only available resource to triangulate the data from the official resources and firsthand interviews. Thirdly, as in all social sciences that deal with the human subject with limited official data, findings from the interviews are the subjective interpretations of the workers who had lost on the mediation, thus may pose challenges vis a vis the reliability of the research.
The Turkish Alternative Dispute Resolution law is based on mediation. Mediation practice is a voluntary or mandatory conflict resolution process where a neutral and independent third party facilitates parties resolve their differences with the objective of reaching a mutually satisfactory agreement. Mediation practice is quite common in dealing with civil, administrative and criminal disputes. Mediation has been widely used in western industrialized societies to facilitate the resolution of collective disputes. Mediation is mostly used when established by statutes, even in instances where it is not mandated that management and labor resort to the use of mediation to resolve their differences.
A similar concept that is often times interchangeable with mediation is conciliation. Conciliation’s main objective is to find middle ground by seeking concessions, and thus is much more restrictive in its mandate than mediation. In conciliation processes, the third party, a trained lawyer, has much more power in delivering the verdict and the decision. Procedurally, a conciliation agreement needs to be preceded by a mediation phase. Arbitration, finally, is a more forceful form of third party intervention where the impartial arbitrator makes a binding final decision after the parties provide evidence and give testimonies. Arbitration sometimes is carried out by a committee resembling a court of judges. Commercial disputes of different scales are typically resolved via arbitration; the World Trade Organization is the global body for global commercial disputes. Use of arbitration in labor disputes on the other hand, has been controversial as the trade unions see the mechanism as undercutting their collective bargaining power.
Previous research done on Alternative Dispute Resolution is not conclusive about the success of the process in labor disputes. ADR processes are cheaper than litigation. However, mandatory ADR in labor disputes may reproduce and even worsen inequalities in industrial relationships and erode workers’ access to justice, because few cases make it to the labor courts. Erosion of labor rights as a collective category in favor of individual rights that can be negotiated by the worker is the core issue. Political authoritarianism views organized labor with its potential for industrial action such as strikes and sit-ins as a significant challenge to its claim of control of the public domain. For that reason, mediation in labor disputes pushes fundamental earned collective rights of labor such as severance and termination pay towards discussion as an individual, not collective, issue that the employee could settle with the employer.
Data on the use of mediation in labor disputes suggest that its success is an extension of the trust between mediators and the parties and influenced by the expertise of the third party. Another important factor that impacts the success of mediation in labor disputes is the larger legal agenda and its objective. The main paradox in labor mediation is the almost impossible task of balancing the objective of ensuring speedy and final resolution of labor disputes with respecting the fundamental right of workers’ access to labor courts. Mediation in labor disputes by design cannot guarantee a win-win solution where both parties needs are satisfied while their rights remain undisputed.
Labor Mediation in Turkey
The Turkish “Labor Courts Law” also known as the “Mediation as a precondition for filing a case” was enacted on January 1, 2018. According to the law, adversaries in a labor dispute are required to settle their differences via mediation. Typically, mediation by definition works based on a voluntary request by the parties. By making mediation mandatory the law aimed to curtail the high number of labor disputes backlogged in the Turkish court system in order to save time and cut down on financial loss. A second critical aspect of the law is the relatively short time period allowed for the mediated settlement of the disputes. The law dictates that the mediation process must end within three weeks, with a possible one-week extension only in extraordinary cases.
The judgments subject to Union and Collective Labor Law No.6356 are very comprehensive. They cover unfair termination of employment contracts of workplace union representatives by the employer; disputes around whether the workplace meet the conditions articulated in collective bargaining agreements; disputes on enactment of the collective bargaining agreement clauses; and most critically, disputes on the lawfulness of a strike or lock-out. Statistics published by the Mediation Directorate of Turkish Ministry of Justice indicate that out of the mediated 751,549 labor dispute cases between 2 January 2018 and 31 December 2019, 64% of cases were settled amicably. Considering that the majority of the cases were about the lawfulness of a strike, the Law served to restrict Labor Unions’ activism as the Turkish political system grew more authoritarian.
Another significant development was an amendment introduced on the Labor Law No. 4857, affecting Article 15 of the Law concerning the Statute of Limitations. The Statute concerns severance and notification compensations, compensations on acts of bad faith by the employers, and compensations as the result of unlawful termination of contracts based on violation of the principle of equal treatment. The amendment drops the Statute of Limitations to only five years in cases of unresolved labor mediation cases. Considering that litigated labor disputes take much longer in Turkish courts, as well as the significant financial cost it imposes on employees with limited financial resources, the majority of such disputes will be terminated in favor of the employers.
There are also serious unethical practices such as employer’s own attorneys acting as the mediator and holding the mediation sessions on company grounds. There has been a Court of Cassation ruling on this, yet the practice continues to culminate in procuring a very high rate of agreements in mandatory labor mediation. More importantly, what is deemed as mediation is actually the practice of conciliation. The third party aims to help parties find common ground, not a win-win solution as the nature of industrial relations is not susceptible to such endeavor.
The Turkish mediation law further complements the erosion of labor rights in Turkey. Our findings from interviews with labor activists and mediators, along with the results from a recent survey conducted by Istanbul University’s Social Economics Center suggest three major themes: Indebtedness, Risk of Unemployment/Precarity, and De-unionization.
Indebtedness: According to my findings, workers settle for much less than what is due compensation for layoffs in the conciliation process. Employers use the logjam in labor courts as a bargaining chip to offer much lower compensation packages to laid off workers. When asked, many workers cite their debts to banks as the main motivation to settle for much less instead of going the litigation route that takes up to five years in average. These results are not surprising considering that the ratio of household debt to disposable income in Turkey—which was insignificant in 2003 (7%)—increased to 55% in 2013. Moreover, this trend affected low-income households the most. 42% of the borrowers of consumer loans were people earning less than 1000TL/ month. In 2013, the government limited credit expansion as the current account deficit kept rising. After the economic shock and contraction after the 2016 coup attempt (the third quarter of 2016 saw a 0.8% decline in GDP), the government again had to rely on credit expansion for restoring economic growth. Household debt increased quickly to around 50% of disposable income. Rising indebtedness functioned as a disciplining mechanism, which caused the de-radicalization of labor. ‘Fear of unemployment and financial ruin’, the ‘indebted man’ could be disciplined and controlled, and would be forced to ‘individualized struggles to maintain existing positions of employment, income and conditions’ rather than ‘social resistance against a policy of state austerity’. Politically, the rising indebtedness of workers influenced their collective psychology, as they demanded economic and political stability more than anything else and believed that only a strong leader could provide such stability.
Risk of Unemployment/Precarity: Another theme that emerged in the interviews was the precarious nature of the labor market in Turkey. Many workers who were forced to settle with the management did so while they sought new temporary jobs in Turkey’s gray market economy, often in the service sector. This is yet another symptom of the larger deregulation of the labor market in Turkey. Workers cite exclusion, lack of solidarity among fellow workers along with concerted effort to keep unions out of the workplaces for their decision to settle. In 2003, in response to the demand from big business circles for ‘flexibility’ and ‘competitiveness’ in the labor market for the global competitiveness of the Turkish economy, a new Labor Law (Law No. 4857) came into force. 2003 Labor Law introduced and institutionalized new forms of flexible employment and increased the control and disciplinary power of employers in the workplace. The 2003 law paved the way for further precarity, insecurity and de-unionization in the labor market. International Trade Union Confederation’s (ITUC) 2016 and 2017 Global Rights Index reports Turkey as one of the 10 worst countries for working people. According to the OECD, in 2016, an average worker in Turkey worked 47.9 hours per week which was the highest in the OECD countries, equal to Colombia. According to the ‘Occupational Health and Safety’ report in 2017 by the Union of Chambers of Turkish Engineers and Architects (TMMOB), workplace accidents have increased six-fold during the AKP period and approximately 20,000 workers died.
De-unionization: In the interviews conducted with the labor attorneys and activists, the mandatory mediation law is framed as the last nail in the coffin for labor rights in Turkey. This law builds on the earlier laws that effectively banned militant labor activism from the factory yards and undoes the rights of collective bargaining guaranteed under the Turkish Constitution by forcing the already disenfranchised and indebted worker to negotiate individually with the management’s lawyers and give up on hard earned collective rights. This analysis fits well into the overall de-unionization trend in Turkey since the 1980 military coup. In 2003, the Erdogan government took over the authoritarian neoliberal orientation of the Turkish state post-1980, with the overall objective to put an end to class-based politics. This orientation took on the militant unions, and its overall aim was to eliminate unions and the labor movement as an effective social force against neoliberalism. During its first decade in power (2002–2012), the AKP did not change the anti-democratic and authoritarian 1980 military coup legislation (Laws No. 2821 and 2822, introduced in 1983). In 2012, a new Trade Union and Collective Bargaining Law in 2012 (Law No. 6356). kept the post-1980 authoritarian union policy intact and did not bring about any radical change to labor relations; it was welcomed by business circles. Unionization levels decreased by 46% between 2001 and 2011, making Turkey the least unionized country in the Organization for Economic Co-operation and Development (OECD) area, with union density in 2011 at just 5.4%.
The number of workers covered by collective agreements also decreased by 50% from the 1990s to the 2010s, and it declined to just 4% in 2015, despite the number of workers having significantly increased. Currently, the union density is 11.95 % and membership rates appear to be on the rise. This, however, is due to the government’s corporatist and authoritarian union strategy which promotes unionism in AKP-friendly unions and de-unionization in dissident unions, in both public and private sector. Authoritarian anti-union policy includes strike bans and police violence towards workers’ protests. Thirteen strikes were ‘postponed’ or, banned by the AKP government since 2002 on the grounds of ‘national security’ and ‘public health’. Six of these bans took place during the state of emergency following the July 2016 coup attempt. May Day celebrations in the symbolic Taksim Square in Istanbul were banned between 2003 and 2008, and again after 2011, except in 2012. Worker Unions attempting to reach the square have been violently dispersed.
The data cited demonstrate how labor mediation works in favor of the employers in Turkey. There is a clear lack of information about how the mediation works by the parties, especially by the employees. The patriarchal work culture in Turkey is quite confrontational and favors the stronger party over the weaker, diminishing the possibility of consensus in mediation sessions. Labor mediation is only accepted as a mandatory procedure to go through before the litigation phase. Furthermore, it is not compulsory for parties to be present at the mediation meetings, a clause especially exploited by the employers, neither is there any law mandating the presence of an attorney to support the employee. Another significant challenge is the unequal nature of industrial relations between the employee and the employer and the embedded power imbalance in the relationship. As a result, labor mediation only serves to further consolidate the victimization of the workers with imposed agreements that favor the employers.
The anecdotal nature of data shared in this article is an inevitable consequence of the Turkish Government’s lack of transparency about disclosing the nature of agreements in labor mediation and how the conciliation favored employer over the employees. There is a need for a more concerted effort as identified by the Turkish Bar Associations for more direct legal support for workers as well as sanctions on employees who exploit the process. The mandatory mediation law in labor disputes in Turkey has resulted in further deterioration of Labor rights and served to consolidate the Turkish private sector’s support for the Erdogan Government at a time when the authoritarian turn in Turkish politics severely restricted labor unions political activism.
 Daniel Druckman, and Christopher Mitchell. “Flexibility in Negotiation and Mediation.” The Annals of the American Academy of Political and Social Science, vol. 542, no. 1, Nov. 1995, pp. 10–23,
 Angela Cora Garcia . How Mediation Works: Resolving Conflict through Talk (2019) Cambridge: Cambridge University Press
 Ferland, Jean-Paul, and Léopold Jasmin. “The Conciliation of Labour Disputes: Conciliators’ Experiences.” Relations Industrielles / Industrial Relations 6, no. 3 (1951): 79–83.
 Stone, Katherine V.W., and Alexander J.S. Colvin. 2015. The Arbitration Epidemic. Economic Policy Institute Briefing Paper no. 414.
 Can Interim Appeal Arbitration Preserve the WTO Dispute System? September 1, 2020 • Free Trade Bulletin. By Simon Lester
 Kochan, Thomas A., and Todd Jick. “The Public Sector Mediation Process: A Theory and Empirical Examination.” Journal of Conflict Resolution, vol. 22, no. 2, June 1978, pp. 209–240,
Richard E. Walton and Robert B. McKersie. A Behavioral Theory of Labor Negotiations: An Analysis of a Social Interaction System. 1965.New York: McGraw-Hill
 Comments from the interviews conducted with labor activists, attorneys on October 2020.