NEWSLETTER-2020-metin

240 NEWSLETTER 2020 diction. Although this principle, referred to as the competence- compe- tence , is acknowledged in general, its scope remains controversial in some respects. However, the pro-arbitration view supports that review should be left to the arbitral tribunals. Regardless of the accepted view, it is clear that the competence of the state courts to review the validity of the arbitration agreement, and the extent of such review, remains controversial. The performance of such review by a mediator would bring with it other issues. Applying for Mandatory Mediator Despite Having an Arbitration Agreement As mentioned, above, applying for a mandatory mediator is the pre-requisite of a case before being brought before the courts. In such case, what should be the impact of an arbitration agreement on the process of mediation when, despite having an arbitration agreement in place, a party applies for mandatory mediation as a pre-requisite prior to a claim being brought before a court? The first point to consider is that the provisions concerning mandatory mediations shall not apply if there is an arbitration agree- ment between the parties. Law No. 6325, which is the legal basis of the powers of the mediator, expressly states this in Article 18/A(18). Hence, it would not be possible to proceed with mediation sessions if there is an arbitration agreement in place. However, when and how could a mediator decide that an arbitra- tion agreement is in place, and that the mediation process should not continue? The mediator should first question whether they can review the presence and the validity of the arbitration agreement, even prima facie, when they are rendering such a decision. At this point, it should be pointed out that the mediator does not have the power to render any decision regarding the dispute, and its duty is to serve as an inter- mediary to assist the parties to meet and negotiate a settlement. Also, pursuant to Article 15/4 of Law No. 6325, only judges are vested with the authority to make judicial actions, and the mediator does not hold that power. Likewise, in the presence of a view that argues the validity of an arbitration agreement should not be considered by the court, a