NEWSLETTER-2020-metin

241 ARBITRATION LAW fortiori the mediator shall not be able to conduct such review. Under these circumstances, the mediator may decide that the dispute is not subject to provisions on mandatory mediation when an objection is made on the basis of an arbitration agreement being in place. In this regard, it might be considered that the mediator could decide that the dispute is not eligible for mediation, pursuant to Article 17/d of Law No. 6325 2 . In this case, another concern should be considered. If the man- datory mediation procedure is not completed, an action may not be brought before the courts. Therefore, hypothetically, if the arbitration agreement is invalid, the claimant’s right to claim the invalidity of the arbitration agreement before the courts will be frustrated, if the media- tor decides as suggested, above. This would present a greater concern, arguing that the courts should review the validity of the arbitration agreement beyond prima facie examination. On the other hand, if it is to be accepted that the court should not perform any substantial review, this concern vanishes. Lastly to consider is the impact of participation of the parties to mandatory mediation sessions respecting the arbitration agreement. If one of the parties initiates the mandatory mediation procedure, and the other party involved in this procedure raises no objection, would it be possible to argue that the parties have implicitly abrogated the arbitra- tion agreement? This question should be answered to the negative. Since mediation is not a judicial proceeding, whether or not the first objections were presented at this stage should not be sought. On the other hand, it would be reasonable to raise this arbitration objection during the mediation meetings, and have this objection noted in the meeting minutes, since the mandatory mediation sessions were ac- cepted as the preliminary stage of the judicial proceedings. Conclusion The mandatory mediation provisions were adopted to ease the workload of the courts, and they do not apply, in principle, if the par- ties have already agreed to an alternative dispute resolution method, 2 However, it is open to discussion as to whether this is, indeed, an eligibility or a competence issue.