Is Mediation Mandatory Before Applying for Insurance Arbitration?
Legal Evaluation
The insurance arbitration process is of great importance for the automotive rental industry. Generally, high satisfaction is achieved in damage files that are frequently encountered in the sector, thanks to the rapid trial carried out by experts and low trial costs.
While this is the case; The fact that one of the insurance arbitration arbitrators rejected the case on procedural grounds because compulsory mediation was not applied before the case raised an important question mark about the necessity of mediation before applying to insurance arbitration.
In Article 18/A of the Law on Mediation in Civil Disputes, mediation (known in practice as compulsory mediation) is regulated as a condition of litigation. Based on this article, mediation becomes a condition of litigation for commercial cases in accordance with Article 5/A of the Turkish Commercial Code. In other words, mediation should be used before commercial lawsuits to be filed against insurance companies. However, according to paragraph 18 of Article 18/A of the same Law, there is a provision that “in cases where it is mandatory to resort to arbitration or another alternative dispute resolution method in special laws or if an arbitration agreement exists, mediation is not applied as a condition of litigation.” This situation requires examining whether mediation regarding insurance arbitration is a condition of litigation.
First of all, we need to point out that; The statement “in cases where there is an arbitration agreement, mediation is not applied as a condition of litigation” in the 18th paragraph of Article 18/A of the Mediation Law is used for applying to insurance arbitration. This indicates that mediation cannot be required. Because arbitration only comes into play if the parties agree to an arbitration agreement. For insurance companies, application to the Insurance Arbitration Center means the establishment of an arbitration agreement, in accordance with Article 30 of the Insurance Law. Therefore, if arbitration will be held at the Insurance Arbitration Center, there already exists an arbitration agreement and the arbitration exception in the Mediation Law applies here.
Considering the purpose of the legislation, it is concluded that it is unnecessary to accept mediation as a condition of litigation before resorting to insurance arbitration. Both Article 30 of the Insurance Law No. 5684 and the Law on Mediation in Civil Disputes No. 6325 essentially aim to ease the workload of the courts and encourage the parties to resolve their disputes through out-of-court solutions. Considering that this purpose should be at the forefront, especially when mediation is a condition of litigation, introducing mediation as a condition before the insurance arbitration application stage does not offer a logical solution in practice. Moreover, considering that applying to the insurance company before resorting to insurance arbitration is already established as a condition of litigation, introducing mediation as an extra condition does not provide any benefit.
As a matter of fact, 2021/3476E of the 4th Civil Chamber of the Supreme Court of Appeals dated 30.06.2021. 2021/3999K. In the proclamation numbered;
“Although Article 97 of the Highway Traffic Law No. 2918 stipulates that the rightful owners who want to benefit from compulsory liability insurance must make a written application to the insurer before filing a lawsuit, even if a lawsuit is filed without making this application, HMK 115/ It is accepted by the established practices of our Department that there is a requirement for a case to be completed in accordance with Article 2. This application was made; However, in cases where there is a defense that the application is made with an incomplete or improper document, it is clear that the deficiency in the document claimed to be improper can be completed in any case.
Article 18/A of the Mediation Law, regulated under the title “Mediation as a Condition of Litigation”, states that “In cases where there is an obligation to resort to arbitration or another alternative dispute resolution method in private laws or where there is an arbitration agreement, the provisions regarding mediation as a condition of litigation do not apply.” provision was included. Article 30/13 of the Insurance Law states that “In order to go to the Commission, the person who has a dispute with the insurance institution must have made the necessary applications to the insurance institution regarding the incident that is the subject of the dispute and must have documented that his/her request has been partially or completely negative. “The fact that the insurance company does not respond in writing within fifteen business days from the date of application is sufficient for an application to the Commission.” includes regulation. In order to apply to the Insurance Arbitration Commission, the condition of applying to the insurance company has been regulated, and a decision must be taken by taking into account the fact that going to mediation is not mandatory and going to a mediator is not a condition of a lawsuit.
The above decision given by the 4th Civil Chamber of the Supreme Court of Appeals clearly states that a written application to the insurance company is a condition for applying for insurance arbitration. 30/13 of the Insurance Law. In accordance with the article, it is stated that the right holder must apply to the insurance company and the application must be rejected, and in addition, if a lawsuit is taken without making an application, it is accepted as a condition for a lawsuit that can be completed in accordance with Article 115/2 of the Civil Code. This enables rights holders to make the necessary application before resorting to judicial action.
On the other hand, the view that applications made with incomplete or improper documents can be completed in any case means that, in practice, the process can be completed within the framework of legal security. Therefore, this opinion is important for the rights holders to complete the transactions without suffering.
In addition, the provision in Article 18/A of the Mediation Law stating “if there is an obligation to resort to arbitration or another alternative solution in special laws” is also here. occupies an important place. Since application to insurance arbitration is subject to a special regulation, it is not mandatory to apply to mediation. This makes it clear that mediation is not a requirement for litigation before resorting to insurance arbitration.
As a result, the decision clarified both the procedural conditions required for application to the insurance arbitration process and the place of the mediation institution. It has been stated that an application must be made to the insurance company before applying for insurance arbitration, and mediation is not mandatory in this process.
In practice, in many decisions, no comment has been made that mediation is a condition of litigation. In practice, the majority opinion is that mediation is not a condition of litigation in insurance arbitration cases.
Is Mediation Mandatory Before Applying for Insurance Arbitration?
Legal Evaluation
The insurance arbitration process is of great importance for the automotive rental industry. Generally, high satisfaction is achieved in damage files that are frequently encountered in the sector, thanks to the rapid trial carried out by experts and low trial costs.
While this is the case; The fact that one of the insurance arbitration arbitrators rejected the case on procedural grounds because compulsory mediation was not applied before the case raised an important question mark about the necessity of mediation before applying to insurance arbitration.
In Article 18/A of the Law on Mediation in Civil Disputes, mediation (known in practice as compulsory mediation) is regulated as a condition of litigation. Based on this article, mediation becomes a condition of litigation for commercial cases in accordance with Article 5/A of the Turkish Commercial Code. In other words, mediation should be used before commercial lawsuits to be filed against insurance companies. However, according to paragraph 18 of Article 18/A of the same Law, there is a provision that “in cases where it is mandatory to resort to arbitration or another alternative dispute resolution method in special laws or if an arbitration agreement exists, mediation is not applied as a condition of litigation.” This situation requires examining whether mediation regarding insurance arbitration is a condition of litigation.
First of all, we need to point out that; The statement “in cases where there is an arbitration agreement, mediation is not applied as a condition of litigation” in the 18th paragraph of Article 18/A of the Mediation Law is used for applying to insurance arbitration. This indicates that mediation cannot be required. Because arbitration only comes into play if the parties agree to an arbitration agreement. For insurance companies, application to the Insurance Arbitration Center means the establishment of an arbitration agreement, in accordance with Article 30 of the Insurance Law. Therefore, if arbitration will be held at the Insurance Arbitration Center, there already exists an arbitration agreement and the arbitration exception in the Mediation Law applies here.
Considering the purpose of the legislation, it is concluded that it is unnecessary to accept mediation as a condition of litigation before resorting to insurance arbitration. Both Article 30 of the Insurance Law No. 5684 and the Law on Mediation in Civil Disputes No. 6325 essentially aim to ease the workload of the courts and encourage the parties to resolve their disputes through out-of-court solutions. Considering that this purpose should be at the forefront, especially when mediation is a condition of litigation, introducing mediation as a condition before the insurance arbitration application stage does not offer a logical solution in practice. Moreover, considering that applying to the insurance company before resorting to insurance arbitration is already established as a condition of litigation, introducing mediation as an extra condition does not provide any benefit.
As a matter of fact, 2021/3476E of the 4th Civil Chamber of the Supreme Court of Appeals dated 30.06.2021. 2021/3999K. In the proclamation numbered;
“Although Article 97 of the Highway Traffic Law No. 2918 stipulates that the rightful owners who want to benefit from compulsory liability insurance must make a written application to the insurer before filing a lawsuit, even if a lawsuit is filed without making this application, HMK 115/ It is accepted by the established practices of our Department that there is a requirement for a case to be completed in accordance with Article 2. This application was made; However, in cases where there is a defense that the application is made with an incomplete or improper document, it is clear that the deficiency in the document claimed to be improper can be completed in any case.
Article 18/A of the Mediation Law, regulated under the title “Mediation as a Condition of Litigation”, states that “In cases where there is an obligation to resort to arbitration or another alternative dispute resolution method in private laws or where there is an arbitration agreement, the provisions regarding mediation as a condition of litigation do not apply.” provision was included. Article 30/13 of the Insurance Law states that “In order to go to the Commission, the person who has a dispute with the insurance institution must have made the necessary applications to the insurance institution regarding the incident that is the subject of the dispute and must have documented that his/her request has been partially or completely negative. “The fact that the insurance company does not respond in writing within fifteen business days from the date of application is sufficient for an application to the Commission.” includes regulation. In order to apply to the Insurance Arbitration Commission, the condition of applying to the insurance company has been regulated, and a decision must be taken by taking into account the fact that going to mediation is not mandatory and going to a mediator is not a condition of a lawsuit.
The above decision given by the 4th Civil Chamber of the Supreme Court of Appeals clearly states that a written application to the insurance company is a condition for applying for insurance arbitration. 30/13 of the Insurance Law. In accordance with the article, it is stated that the right holder must apply to the insurance company and the application must be rejected, and in addition, if a lawsuit is taken without making an application, it is accepted as a condition for a lawsuit that can be completed in accordance with Article 115/2 of the Civil Code. This enables rights holders to make the necessary application before resorting to judicial action.
On the other hand, the view that applications made with incomplete or improper documents can be completed in any case means that, in practice, the process can be completed within the framework of legal security. Therefore, this opinion is important for the rights holders to complete the transactions without suffering.
In addition, the provision in Article 18/A of the Mediation Law stating “if there is an obligation to resort to arbitration or another alternative solution in special laws” is also here. occupies an important place. Since application to insurance arbitration is subject to a special regulation, it is not mandatory to apply to mediation. This makes it clear that mediation is not a requirement for litigation before resorting to insurance arbitration.
As a result, the decision clarified both the procedural conditions required for application to the insurance arbitration process and the place of the mediation institution. It has been stated that an application must be made to the insurance company before applying for insurance arbitration, and mediation is not mandatory in this process.
In practice, in many decisions, no comment has been made that mediation is a condition of litigation. In practice, the majority opinion is that mediation is not a condition of litigation in insurance arbitration cases.