The Principle of Confidentiality in the Mediation Process and Criminal Sanctions for Its Breach

1. The Place and Importance of the Principle of Confidentiality in the Institution of Mediation

Mediation is an alternative dispute resolution method that enables the parties to resolve their disputes more quickly, at lower cost and in a less draining manner. However, the healthy functioning of this system depends on the parties feeling secure during the mediation process. It is precisely the principle of confidentiality that provides this sense of security. The parties can act openly and honestly to the extent that they are certain that the information and documents they disclose during the negotiations will not later be used against them. Confidentiality is therefore not merely an ethical principle, but the cornerstone of the institution of mediation.

From a legal standpoint, confidentiality is expressly regulated in Law No. 6325 on Mediation in Civil Disputes (HUAK). Article 4 of the Law states that all information, documents and statements connected with mediation activity are confidential, while Article 33 provides for imprisonment of up to six months for persons who breach this confidentiality. These provisions show that the principle of confidentiality is treated as a requirement relating to public order. A breach of confidentiality therefore has consequences not only between the parties but with respect to all participants.

2. The Scope of the Principle of Confidentiality

The principle of confidentiality is a binding rule extending over the entire mediation process. This obligation is not limited to the parties; it applies to the mediator, the parties' representatives and everyone who is involved in the process in any capacity. It is prohibited to share with third parties any information, documents, offers, explanations or statements obtained during the process. The content of the negotiations, who attended the session, whether the proposals made were accepted, and the statements voiced during the negotiation process are all under the protection of confidentiality.

Bringing before a court what was said during the mediation process is not possible under Article 5 of Law No. 6325. This provision expressly regulates that statements made by the parties in mediation cannot subsequently be used as evidence. Even if such documents are submitted to the court, the court regards them as legally invalid. In this way, a safe space is created in which the parties speak freely. Confidentiality protects not only the internal security of the process but also the integrity of the judicial proceedings.

The principle of confidentiality is also closely related to the protection of personal data. In the mediation process, data of a private nature, such as the parties' identity, address, contact or financial information, may be processed. For this reason, under the Personal Data Protection Law No. 6698 (KVKK), it is mandatory to take the necessary security measures, to obtain the explicit consent of the parties and to use the data only within the scope of the mediation activity. In this respect, confidentiality is a multi-layered obligation protected by the provisions of both HUAK and KVKK.

3. Legal and Criminal Consequences of a Breach of Confidentiality

Conduct contrary to the principle of confidentiality may have multiple consequences in different fields of law. With regard to civil proceedings, pursuant to Article 5 of HUAK, statements or documents subject to confidentiality cannot be used as evidence before a court or an arbitrator. Even if such documents are submitted, the court regards them as legally invalid. Accordingly, statements made by the parties during the mediation process cannot be used in the proceedings for or against either party, even if no agreement has been reached. This provision guarantees that the parties can speak freely and with confidence during the mediation process.

With regard to criminal law, a person who acts contrary to confidentiality may, upon complaint, be punished with imprisonment of up to six months pursuant to Article 33 of HUAK. A breach of confidentiality may be committed not only by the parties but also by the mediator or the parties' representative. Thus, the obligation of confidentiality is backed by sanctions under both public law and private law.

However, confidentiality is not an absolute principle. Article 4(3) of HUAK provides that confidentiality may be lifted in certain cases. The obligation of confidentiality ceases in cases such as the sharing of information with the explicit consent of the parties, a disclosure made for the purpose of preventing or investigating a crime, or the drawing up of an enforceable settlement document. However, these exceptions must be interpreted narrowly; otherwise, the rule of confidentiality loses its function. The essence of confidentiality is founded on the will of the parties and the relationship of trust; maintaining this balance is essential for the reputation of the institution of mediation.

4. Conclusion and Assessment

The efficiency of the mediation process is directly linked to the parties feeling secure throughout the process. The most fundamental element that provides this trust is the principle of confidentiality. A breach of confidentiality not only harms the parties; it also undermines confidence in the institution as a whole. For this reason, mediators, the parties' representatives and everyone involved in the process should regard the obligation of confidentiality not only as a statutory requirement but also as a professional responsibility.

Confidentiality is the guarantee of the environment of “free negotiation” that constitutes the essence of mediation. A lasting settlement cannot be achieved in a process in which the parties cannot speak in confidence. For this reason, raising awareness of the principle of confidentiality is also of great importance for the social acceptance and effectiveness of the institution of mediation.