Switzerland is a country with a rich tradition of mediation and neutrality. It has always been a preferred location for international arbitration for over 100 years, including institutional arbitration and ad hoc arbitration. Switzerland is also widely recognized by the international community as a neutral country.
Switzerland is also known for its adherence to private international law, confidentiality, neutrality and respect for the principles of treaty confidentiality. The Arbitration Institute of the Swiss Chamber of Commerce is a body of the Arbitration and Mediation Association of the Swiss Chamber of Commerce (including the cantonal chambers of and widely used international dispute resolution rules, the Swiss Rules for International Arbitration (“SRIA”) and the Swiss Rules for Commercial Mediation (“SRCM”, collectively the “Swiss ADR Rules”). In addition, the World Intellectual Property Organization (“WIPO”), a United Nations agency, provides and administers a wide range of international ADR services, including arbitration, mediation and expert opinion.
In the field of international sports, the Court of Arbitration for Sport (“CAS/TAS”) in Lausanne also provides mediation and arbitration and has expressed an increasing interest in the use of mediation and arbitration. Many other international ADR organizations, such as the World Trade Organization (“WTO”) and the International Chamber of Commerce (“ICC”) offer ADR programs in Switzerland.
Legal Status of Mediation in Switzerland
Internationally, Swiss Private International Law is highly regarded by the international community in resolving commercial disputes, leading to the choice of Geneva, Zurich or Lausanne for many international commercial disputes, including dealing with investor-state disputes. The country’s ADR agency also uses the most up-to-date rules, all of which are compatible with the latest United Nations Commission on International Trade Law (UNCITRAL) Arbitration and Mediation Rules.
At the national level, the Swiss Code of Civil Procedure (SCCP) came into effect on January 1, 2011, and unified the different approaches to civil and commercial mediation in the states at the time. The SCCP recognizes and distinguishes three dispute resolution procedures as alternatives to national court decisions. They are: (i) Arbitration, (ii) Mediation and (iii) Mediation.
Conciliation
a) Justice of the peace and settlement conferences in court
One of the major features of swiss civil procedure is the important role of justices of the
peace. A civil action usually starts with a settlement conference led by a justice of the peace.
b) The institution of the ombudsman
The other important institutions of conciliation in Switzerland are the public and private ombuds agencies. The highest profile and active ombudsmen in the private sector are those who are working in the insurance, banking and travel fields. In terms of the public ombuds agencies, those in Zurich, Winterthur and Berne and in the cantons of Zurich, Basel-Stadt, Basel-Land and Berne are the most significant.
Mediation as Part of the Swiss Code of Civil Procedure
The unified SCCP incorporates provisions on mediation (Articles from 213 to 218 and Article 297, Para.2 SCCP). The purpose of these provisions is to establish its connection with court proceedings.
1. Requirements towards mediators
The mediator shall remain independent and impartial at all times during the mediation procedure. The Parties shall immediately be informed of any circumstance which is likely to affect his or her impartiality.
2. SCCP on civil mediation
The mediation procedure may be suggested to the parties as an alternative to conciliation or as a procedure within the framework of the case pending with the court of the first or the second instance. (i) As a general rule a case can be filed with the court only after the attempt of conciliation. Conciliation is conducted by the designated independent, neutral and impartial judge; who, unlike a mediator, may suggest a solution to the parties in case they do not achieve it themselves. Upon the request of all parties conciliation may be replaced by mediation. (ii) Judges may at any time recommend to the parties to make use of mediation proceedings.
3. Mediation when the case is pending
Parties may recur to mediation when the case is already pending, or request for mediation after the mandatory conciliation has failed or when the attempt of conciliation did not take place when it deals with the areas where such attempt is optional or is not allowed by the law. The court proceedings are suspended for the period of mediation. Since mediation is voluntary, it can be discontinued at any time, in such case the proceedings shall continue.
4. Mediation Agreement: Approval
An agreement concluded by the parties as a result of mediation (Mediation Agreement) is a civil law contract. If the parties have reached an agreement, they may apply for its approval by the conciliation body or by the court provided that the agreement complies with public order and mandatory rules of law.
Mediation in Practice
The main unspoken difference between mediation and arbitration is:
- A typical mediation session lasts at least a few hours, if not a few half days or a full day;
- Mediators are less likely to rely solely on normative or legal syllogisms to formulate or propose solutions;
- The mediator often meets with the parties individually and uses caucus or pre-group meetings not to conduct reality testing (although this can be done), but to guide the parties on what they can do in a joint meeting; and
- The mediator will typically work with the parties, first helping them identify their future subjective interests (rather than their positions), and based on those interests, developing options agreements that lead to durable and viable options address the parties’ interests.
As the SCCP is relatively new in Switzerland and all mediation proceedings are confidential, there are limited statistics on the use of mediation or the use of mediation instead of arbitration in Switzerland. The use of mediation is widespread and growing in terms of both mediation and arbitration. As in many other countries, settlement rates are between 70-80%, but arbitration settlement rates are lower depending on the training of the arbitral body obtained.
Conciliation is practised in the majority of commercial and civil cases that are pending before the courts. It is believed that extra-judicial mediation (as opposed to conciliation), whether ad-hoc or using private institutional rules is still the exception rather than the norm. Its use has been growing in the last few years, however lawyers and arbitrators are beginning to take a growing interest in this form of ADR process, including mediation clauses in an increasing number of agreements.