{"id":3503,"date":"2026-04-16T14:24:57","date_gmt":"2026-04-16T11:24:57","guid":{"rendered":"https:\/\/nazali.av.tr\/?p=3503"},"modified":"2026-04-22T09:21:34","modified_gmt":"2026-04-22T06:21:34","slug":"multi-tiered-dispute-resolution-in-arbitration","status":"publish","type":"post","link":"https:\/\/nazali.av.tr\/en\/multi-tiered-dispute-resolution-in-arbitration\/","title":{"rendered":"MULTI-TIERED DISPUTE RESOLUTION IN ARBITRATION"},"content":{"rendered":"\n
Dila G\u00fcne\u015f \u00dcst\u00fcnda\u011f<\/strong>
Senior Attorney, Litigation and Dispute Resolution<\/td>		Zeynep \u00d6z\u00e7elik<\/strong>
Trainee Lawyer<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n

ABSTRACT<\/strong><\/p>\n\n\n\n

It is possible to combine arbitration proceedings, which constitute a final and alternative remedy, with other alternative dispute resolution methods in accordance with the requirements of the concrete case. In disputes where the dispute resolution method has been agreed upon as arbitration, the parties may stipulate arrangements whereby mediation must be pursued prior to arbitration, or mediation may be resorted to before or during arbitration, or although the dispute shall be resolved in arbitration, an evaluation shall be made as to whether mediation shall be prioritised in the event of a dispute. Taking these and similar circumstances into account, in this study, multi-tiered dispute resolution mechanisms contained in arbitration agreements have been examined by providing examples from ICC Model Clauses and ISTAC Rules, explaining the flexibilities and time limitations offered to the parties by different regulations.<\/p>\n\n\n\n

Keywords:<\/strong> Arbitration, Mediation, Multi-Tiered Dispute Resolution, Mediation-Arbitration (Med-Arb) Clauses.<\/p>\n\n\n\n

INTRODUCTION<\/strong><\/p>\n\n\n\n

The most fundamental and distinctive feature of arbitration agreements is the principle of party autonomy. The parties may agree that the dispute shall be resolved through arbitration proceedings outside state courts. The most important feature distinguishing arbitration proceedings from other alternative dispute resolution methods is that it constitutes a final remedy. Among alternative dispute resolution methods, the dispute resolution activity that we most frequently observe combined with arbitration is mediation. Certainly, arbitration and mediation are quite distinct resolution methods. While mediation enables the parties to resolve the dispute amicably by coming together with an objective third party, arbitration aims at the final resolution of the dispute by the arbitrator through proceedings before arbitrators. Due to these two processes being subject to different purposes and characteristics, the parties may determine a multi-tiered dispute resolution path through mediation-arbitration (med-arb) agreements. The possibility that potential dispute scenarios may be resolved primarily through the joint will of the parties will be beneficial in terms of the continuity of commercial relationships, particularly in long-term commercial relationships, due to opportunities such as ensuring mutual communication between the parties and finding a common solution point. In this study, the procedures that parties may choose and different options regarding dispute resolution processes shall be examined in accordance with med-arb agreements among multi-tiered dispute resolution methods.<\/p>\n\n\n\n

I. VALIDITY OF MED-ARB AGREEMENTS<\/strong><\/p>\n\n\n\n

Arbitration contains mutual declarations of will by the parties to apply to an arbitrator or arbitral tribunal for the resolution of all or part of disputes arising or which may arise from a contractual or non-contractual legal relationship.\u00b9 It is an alternative dispute resolution method based on contract, and through arbitration, disputes are finally resolved by arbitrators instead of state courts. The parties to an arbitration agreement may also agree to resolve the matter amicably through direct negotiations or through non-binding procedures assisted by a third party such as mediation before bringing any dispute to arbitration.\u00b2 These provisions envisaging that the dispute shall be addressed progressively through at least two different dispute resolution methods are called “multi-tiered” dispute resolution clauses.\u00b3 In respect of multi-tiered arbitration agreements also containing mediation provisions, it is necessary to comply with the validity conditions determined for arbitration agreements. Essentially, Article 2 of the New York Convention (“NYC”), which regulates the recognition and enforcement conditions of arbitral awards, contains provisions regarding the formal validity of arbitration agreements, and paragraphs 1 and 2 of the Article stipulate that the arbitration agreement must be made in writing.\u2074 According to the NYC, the substantive validity of arbitration agreements is determined according to the law to which it is subject. Therefore, there is no uniform regulation regarding the validity of these agreements.\u2075 In terms of our law, the conditions required for an arbitration agreement to be valid are listed in Article 4 of the International Arbitration Law (“IAL”) as follows: (i) declaration of will, (ii) written form requirement, (iii) arbitrability, and (iv) the dispute must be specified.\u2076 One of the most important matters regarding arbitration agreements is that the parties have clear and unequivocal declarations of will regarding the final resolution of the dispute through arbitration. Since expressions that remain ambiguous or create uncertainty regarding the will of the parties may cause the invalidity of the arbitration agreement, the existence of the stated conditions is important for a valid and enforceable med-arb agreement.\u2077 Within the scope of the validity conditions listed above, although med-arb agreements are accepted as valid, in a recent decision of the Court of Cassation,\u2078 it was decided that an arbitration agreement containing a provision that mediation shall be pursued before applying to arbitration was invalid, as it was deemed contrary to the requirement that the arbitration clause must be stated clearly and unequivocally so as not to cause dispute and confusion. However, this decision is criticised\u2079 for reasons such as the parties’ determination of a path to be followed in dispute resolution does not render their will regarding the final resolution of the dispute in arbitration ambiguous, and various arbitration institutions in our country and in the world also have studies regarding med-arb clauses, and we are of the opinion that the relevant decision is not appropriate in line with the examinations above.<\/p>\n\n\n\n

II. EFFECT ON THE DISPUTE RESOLUTION PROCESS<\/strong><\/p>\n\n\n\n

A valid arbitration agreement prevents the parties from applying to state courts for dispute resolution. If one of the parties applies to a state court for the resolution of the dispute, the court must refer the dispute to arbitration. This is called the kompetenz-kompetenz principle, namely the negative effect of the arbitration agreement.\u00b9\u2070 The parties may regulate the multi-tiered dispute resolution method in different ways when establishing a med-arb agreement. In this context, agreements may envisage a negotiation obligation regarding applying to mediation before resorting to arbitration proceedings, may allow mediation and arbitration to be conducted simultaneously, or may make it mandatory to exhaust the mediation path before initiating arbitration proceedings. Within the scope of the negative effect of the arbitration agreement mentioned above, whether the arbitration request will be accepted or not in cases where the parties agree to apply to mediation first in the event of a dispute but apply directly to arbitration depends on how the mediation condition is determined.\u00b9\u00b9<\/p>\n\n\n\n

a. Evaluation of Application to Mediation by the Parties After the Dispute Arises<\/strong><\/p>\n\n\n\n

In this method, when a dispute arises between the parties, it is possible for them to evaluate together regarding applying to the mediation path for the resolution of this dispute. In this case, the drafting style of the relevant agreement text is important, and the parties will undertake an obligation to evaluate whether to apply to mediation or not through the contract. However, ultimately, it may be agreed not to apply to mediation and the dispute may be resolved directly before arbitration. In this respect, it is a method that allows considerable flexibility regarding not applying to mediation. ICC Model Clause: “In the event of a dispute arising out of or in connection with this contract, the parties agree first to consider and to evaluate whether to refer the dispute to mediation under the ICC Mediation Rules.”\u00b9\u00b2<\/p>\n\n\n\n

b. Mediation Concurrent with Arbitration<\/strong><\/p>\n\n\n\n

In another method, the parties will apply to the mediation path for the resolution of the dispute, but the fact that any party has applied to this path will not prevent the initiation of arbitration proceedings before the mediation process is completed. In this method, when one of the parties initiates arbitration proceedings before the mediation process is completed, if the arbitrators determine that the completion of mediation is not a precondition, they may begin to examine the dispute on the merits. At this point, once again, how the relevant med-arb agreement is drafted is of great importance. ICC Model Clause: “(x) In the event of any dispute arising out of or in connection with this contract, the parties shall first refer the dispute to mediation under the ICC Mediation Rules. The initiation of proceedings under the ICC Mediation Rules shall not prevent any party from initiating arbitration proceedings in accordance with paragraph (y) below. (y) All disputes arising out of or in connection with this contract shall be finally settled by one or more arbitrators appointed in accordance with the ICC Rules of Arbitration.”\u00b9\u00b3<\/p>\n\n\n\n

c. Mandatory Application to Mediation Before Arbitration<\/strong><\/p>\n\n\n\n

It may be accepted by the parties that in the event of a dispute, mediation shall be applied first and after the mediation activity results in failure, the arbitration agreement shall produce legal effects and consequences.\u00b9\u2074 Mediation clauses must be drafted in clear and unequivocal language in order to constitute a mandatory condition before applying to arbitration.\u00b9\u2075 In order to ensure clarity and certainty, it is recommended to set a time limit.\u00b9\u2076 In this case, arbitration proceedings may only be initiated when the period determined for mediation has elapsed or when success cannot be achieved within this period. In the event that arbitration is applied for without carrying out the mediation period, if the arbitrators decide that the arbitration agreement will not produce legal effects and consequences without going the mediation path, namely that mediation is a precondition, the parties will need to apply to mediation first. In such a case, arbitrators generally suspend the proceedings for the parties to resolve the dispute through mediation first rather than rejecting the arbitration request.\u00b9\u2077 A time limit is also envisaged in the model clause published by the ICC in order to ensure certainty. The relevant provision is as follows: “In the event of any dispute arising out of or in connection with this contract, the parties shall first refer the dispute to proceedings conducted under the ICC Mediation Rules. If the dispute has not been settled pursuant to the said Rules within [45] days following the submission of a Request for Mediation or within such other period as the parties may agree in writing, such dispute shall thereafter be finally settled by one or more arbitrators appointed in accordance with the ICC Rules of Arbitration.”\u00b9\u2078<\/p>\n\n\n\n

d. Istanbul Arbitration Centre Mediation \u2013 Arbitration Rules<\/strong><\/p>\n\n\n\n

The Mediation \u2013 Arbitration Rules (“ISTAC Rules”) of the Istanbul Arbitration Centre (“ISTAC”), which include both mediation and arbitration processes, entered into force in 2019. In Article 2 of the ISTAC Rules, it is stated that the rules shall apply in cases where the parties agree that the dispute between them shall be resolved first through the mediation method, and finally through the arbitration path in case the parties cannot agree. Unless otherwise agreed by the parties, it is regulated that arbitration proceedings cannot be initiated before the mediation period expires. Unlike the ICC Model Clause, the period proposed for the completion of mediation is regulated as eight weeks if not otherwise agreed. Therefore, when the mediation process ends, if the parties have not reached an agreement, this situation shall be determined with a non-agreement minute to be signed by the mediator and the parties, and then arbitration proceedings may be initiated. If arbitration proceedings are initiated without complying with the determined period or before the mediation is concluded, it is regulated that the other party may raise an objection to jurisdiction and the arbitrator may decide to suspend the arbitration proceedings.<\/p>\n\n\n\n

CONCLUSION<\/strong><\/p>\n\n\n\n

In conclusion, mediation-arbitration (med-arb) agreements enable the parties to resolve their disputes through a multi-tiered process within the framework of party autonomy. While such regulations aim to protect the commercial relationship between the parties by prioritising the resolution of the dispute through amicable means; at the same time, they guarantee that a binding and final decision shall be given through arbitration proceedings when a solution cannot be provided. Whether the multi-tiered dispute resolution shall proceed consecutively or in parallel is determined by the agreement clause negotiated by the parties. Different views are adopted in doctrine regarding the binding nature of med-arb clauses, and the issue of whether compliance with these clauses in arbitration proceedings should be evaluated within the scope of a ‘jurisdiction’ matter or an ‘admissibility’ problem is debatable. ICC Model Clauses and ISTAC Rules have developed practical solutions in this regard by offering options suitable for different needs of the parties. Therefore, med-arb agreements come to the fore as a dispute resolution method that provides both flexibility and efficiency to the parties and responds to the needs of commercial life.<\/p>\n\n\n\n

\n\n\n\n

\u00b9 Baki KURU, Ramazan ARSLAN, Ejder YILMAZ, Medeni Usul Hukuku Ders Kitab\u0131, Yetkin Yay\u0131nlar\u0131, 24th Edition, Ankara 2011, p.780<\/p>\n\n\n\n

\u00b2 Nigel BLACKABY, Constantine PARTASIDES, Alan REDFERN, Martin HUNTER, Redfern and Hunter on International Arbitration, Oxford Academic, 6th Edition, 2015, para.2.88<\/p>\n\n\n\n

\u00b3 Ceren EY\u00dcBO\u011eLU, “T\u00fcrk Hukukunda Tahkim Anla\u015fmas\u0131n\u0131n Ge\u00e7erlili\u011fi”, Ankara Barosu Dergisi, 75(3), October 2017, pp.231-232<\/p>\n\n\n\n

\u2074 Ebru \u015eens\u00f6z MALKO\u00c7, M\u00fcge DE\u011e\u0130RMENC\u0130O\u011eLU, “Milletleraras\u0131 Ticari Tahkimde Hibrit Tahkim Klozlar\u0131n\u0131n Ge\u00e7erlili\u011fi”, Marmara \u00dcniversitesi Hukuk Fak\u00fcltesi Hukuk Ara\u015ft\u0131rmalar\u0131 Dergisi, Year 2021, Volume: 27 Issue: 1, p. 613<\/p>\n\n\n\n

\u2075 Court of Cassation 3rd Civil Chamber’s decision dated 15.04.2025 numbered 2025\/225 E. and 2025\/2164 K.<\/p>\n\n\n\n

\u2076 \u015eamil DEM\u0130R, “Yarg\u0131tay’\u0131n Kademeli Uyu\u015fmazl\u0131k \u00c7\u00f6z\u00fcm \u015eartlar\u0131na Yakla\u015f\u0131m\u0131: Med-Arb’\u0131n Gelece\u011fine Dair Bir De\u011ferlendirme”, September 2025<\/p>\n\n\n\n

\u2077 Selin Ece TEK\u0130N, Milletleraras\u0131 Tahkim Hukukunda Tahkim Anla\u015fmas\u0131n\u0131n Esastan Ge\u00e7erlili\u011fine Uygulanacak Hukuk. On \u0130ki Levha Yay\u0131nc\u0131l\u0131k, February 2019, p.127<\/p>\n\n\n\n

\u2078 Mine TAN DEHMEN, “Tahkim \u00d6ncesi M\u00fczakere ya da Uzla\u015ft\u0131rma Yollar\u0131n\u0131n T\u00fcketilmemi\u015f Olmas\u0131n\u0131n Tahkim Yarg\u0131lamas\u0131na Etkisi”, Milletleraras\u0131 Hukuk ve Milletleraras\u0131 \u00d6zel Hukuk B\u00fclteni, 2011, p.463<\/p>\n\n\n\n

\u2079 International Chamber of Commerce, “Mediation Clauses”, Access Date: 30.09.2025 https:\/\/iccwbo.org\/dispute-resolution\/dispute-resolution-services\/adr\/mediation\/mediations-clauses\/<\/a><\/p>\n\n\n\n

\u00b9\u2070 International Chamber of Commerce, “Mediation Clauses”, Access Date: 30.09.2025 https:\/\/iccwbo.org\/dispute-resolution\/dispute-resolution-services\/adr\/mediation\/mediations-clauses\/<\/a><\/p>\n\n\n\n

\u00b9\u00b9 Gary BORN, International Commercial Arbitration, Kluwer Law International, 3rd Edition, 2021, p. 986<\/p>\n\n\n\n

\u00b9\u00b2 Julian D. M. LEW, Loukas A. M\u0130STEL\u0130S, Stefan M. KR\u00d6LL, Comperative International Commercial Arbitration, Kluwer Law International, 2003, p.182, para. 8-65<\/p>\n\n\n\n

\u00b9\u00b3 Cemil DEM\u0130R G\u00d6KYAYLA, “Arabuluculuk ve Tahkimi Bir Arada \u0130\u00e7eren Uyu\u015fmazl\u0131k \u00c7\u00f6z\u00fcm Yolu”, \u0130stanbul Hukuk Mecmuas\u0131, 77(2), 2019, p.586<\/p>\n\n\n\n

\u00b9\u2074 International Chamber of Commerce, “Mediation Clauses”, Access Date: 30.09.2025 https:\/\/iccwbo.org\/dispute-resolution\/dispute-resolution-services\/adr\/mediation\/mediations-clauses\/<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Dila G\u00fcne\u015f \u00dcst\u00fcnda\u011f Senior Attorney, Litigation and Dispute Resolution Zeynep \u00d6z\u00e7elikTrainee Lawyer ABSTRACT It is possible to combine arbitration proceedings, which constitute […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9],"tags":[67,68,69,70],"class_list":["post-3503","post","type-post","status-publish","format-standard","hentry","category-makale","tag-arbitration","tag-mediation","tag-mediation-arbitration-clauses","tag-multi-tiered-dispute-resolution"],"_links":{"self":[{"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/posts\/3503","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/comments?post=3503"}],"version-history":[{"count":2,"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/posts\/3503\/revisions"}],"predecessor-version":[{"id":3610,"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/posts\/3503\/revisions\/3610"}],"wp:attachment":[{"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/media?parent=3503"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/categories?post=3503"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nazali.av.tr\/en\/wp-json\/wp\/v2\/tags?post=3503"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}