Nowadays, due to the increasing daily and commercial relations between individuals, legal disputes have gained diversity and out-of-court dispute resolution methods have increased their importance day by day in order to resolve these disputes. The method adopted to resolve legal disputes outside the judicial system, without trial, is called “alternative resolution methods”. Among the alternative dispute resolution methods, the institution of “Mediation” appears as the most preferred method.
Mediation, which is one of the out-of-court dispute resolution methods, is the most talked about and therefore frequently preferred by the parties today due to its unique features such as the process is not public, the method is not subject to strict rules, the authority to decide on the dispute is not transferred to anyone else but remains with the parties to the dispute. has become a method.
In the mediation method, the authority to decide on the dispute, to conclude the dispute by agreement, or to decide to seek a solution before the court or arbitrator belongs entirely to the parties to the dispute. This issue is stated in the justification of the Law on Mediation in Legal Disputes (HUAK) as follows: “The mediator does not make a decision at the end of the mediation process, but aims to make the resolution of the dispute possible by ensuring communication between the parties through scientific methods.”
Therefore, the mediation institution’s ability to provide the efficiency expected from it and the success of the process by ending with an agreement depends on the parties’ sincere participation in the process and their ability to clearly express their interests. This will only happen if the parties trust each other and the mediator. For this reason, the parties must be sure that the confidentiality of the statements and documents they share during the mediation process will be maintained and that they cannot be used against them in a possible subsequent trial if the process fails.
As we mentioned above, maintaining the functionality and attractiveness of the mediation method depends on the trust in this method. In order to achieve this, maintaining confidentiality in mediation is the most fundamental principle. One of the main reasons why the parties want to resolve the dispute through mediation outside of court is that they do not want the dispute between them to be known by third parties.
In the proceedings before the court, the fact that the hearings are especially public plays an important role in the parties’ choice of mediation, whose basic principle is confidentiality. After a trial in court with mutual accusations, it is not possible for the parties to resume their old relations. On the other hand, in the mediation process that is based on confidentiality, it will be possible for the parties to act more carefully and focus on resolving the dispute instead of harming each other. Confidentiality is a principle that is as important among the parties as it is among the mediator.
The principle of confidentiality in mediation is regulated in the 1st paragraph of Article 4 of the Law on Mediation in Civil Disputes as follows: “Unless otherwise agreed by the parties, the mediator is obliged to keep confidential the information, documents and other records submitted to him within the framework of the mediation activity or obtained in any other way.” As can be seen, in the first paragraph of the said article, the principle of confidentiality is emphasized in terms of the mediator. In this context, the mediator is, as a rule, obliged to keep confidential the information and documents submitted to him or obtained otherwise. However, the parties may decide otherwise if they wish. According to the justification of Article 4 of HUAK, a decision to the contrary must be made clearly, and the mediator should not reach this conclusion by interpretation unless there is a clear will. In this context, the mediator informs the parties regarding the confidentiality principle in his opening speech. The mediator shall also record the information about the confidentiality principle in the meeting minutes.
The mediator is like a confidant of the parties regarding the dispute shared with him. In this context, the mediator is obliged to keep the secrets shared with him. In this respect, the mediator will be considered one of the persons who are under the obligation of confidentiality and will be under the obligation of confidentiality unless there is a legal obligation or refraining from testifying in a trial within the framework stipulated by law. If the mediator violates this obligation, he/she will be subject to deletion from the registry and criminal sanctions in accordance with HUAK articles 21 and 33. However, in case of violation of this obligation, it will be possible for the parties to take legal responsibility of the mediator.
In the second paragraph of the same article, the aspect of confidentiality regarding the parties is emphasized. According to HUAK article 4/2: “Unless otherwise agreed, the parties and other persons participating in the negotiations must also comply with confidentiality on this matter.” As can be seen, unless the parties have agreed otherwise, they must also comply with confidentiality on this matter. Although it is stated in the text of the article that only “parties” and “other persons participating in the negotiations are liable”, according to the 3rd paragraph of Article 6 titled “Confidentiality” of the regulation on the Law on Mediation in Civil Disputes, the obligation to comply with the rule of confidentiality, the persons working with the mediator, the control and supervision As can be seen, the said regulation has expanded the scope of persons under the obligation of confidentiality.
According to Article 5 of HUAK, which is the continuation of Article 4 regarding confidentiality, the parties, the mediator or a third party, including those who participate in mediation, cannot claim the following statements or documents as evidence when a civil lawsuit is filed or arbitration is initiated regarding the dispute, and they cannot claim the following statements or documents about them. cannot testify:
- An invitation to mediation made by the parties or a party’s request to participate in a mediation activity.
- Opinions and proposals put forward by the parties to end the dispute through mediation.
- The suggestions put forward by the parties or the acceptance of any fact or claim during the mediation activity.
- Documents prepared only for mediation activities
As we mentioned above, the most fundamental principle of confidentiality in mediation requires that the dispute between the parties, its content, and the information and documents used in the dispute remain confidential. For this reason, the legislator has clearly stated the scope of situations in which statements, information and documents cannot be used during the mediation activity regarding the principle of confidentiality. In this context, the prohibition specified in the text of the article will be valid during a direct or indirect trial regarding the dispute.
In Article 5/3 of HUAK, it is stated that the disclosure of information and documents prohibited from being disclosed and used above cannot be requested by the court, arbitrator or any administrative authority. Despite the prohibition on this matter, if the statements or documents in question are presented as evidence by the parties or without the knowledge of the parties, they will not be taken as basis for the decision. This issue is stated in HUAK article 5/3 as follows: “These statements or documents cannot be taken as basis for the decision, even if they are presented as evidence, contrary to what is stipulated in the first paragraph.” As can be seen, the legislator has regulated the ban in question very strictly, even considering the possibilities. However, with the last sentence of the same article, two exceptions were made to this ban. According to the article of the law, the information in question may be disclosed to the extent that it is ordered by a legal provision or necessary for the implementation and enforcement of the agreement reached at the end of the mediation process.
To address the consequences of violating the principle of confidentiality in mediation, the consequences of violating the principle of confidentiality are regulated in Article 33 of the Law on Mediation in Civil Disputes. According to this article, a person who violates the confidentiality principle may be punished with up to 6 months of imprisonment upon complaint. However, in Article 21 of the same law, a sanction is foreseen for the mediator who acts contrary to the provisions of this law. According to HUAK article 21/2; The Department warns in writing the mediator who it finds has not fulfilled the obligations stipulated by this Law; In case this warning is not complied with, after taking the mediator’s defense, he requests the Board to delete his name from the registry, if necessary.
The regulations made in the Mediation Law and other relevant legislation and the “confidentiality environment” provided in mediation meetings enable the parties to sincerely participate in the process and to clearly present their own interests. Therefore, in practice, it is of great importance for both the mediators and the parties participating in the negotiations to strictly comply with the principle of confidentiality in order to reach an agreement at the end of the negotiations.
