Unlike other jurisdictions, Switzerland has no comprehensive law on mediation. Mediation is regulated by various decrees, such as the Swiss Criminal Code, the Swiss Civil Procedure Code (CPC) and administrative laws. It is generally understood as an alternative dispute resolution (ADR) method to resolve disputes outside of court proceedings.

The Swiss Bar Association (SBA) defines mediation as “an alternative dispute resolution process in which one or more independent and impartial mediators assist the parties to resolve their dispute autonomously and by mutual agreement” (see Regulations on Mediation of the Swiss Bar Association, dated 4 April 2022, www.sav-fsa.ch/documents/672183/2041591/220404_Richtlinien+SAV+Mediation.pdf).

Other definitions can be found in the Swiss Rules of Mediation (2021) set out by the Swiss Arbitration Centre: “Mediation is a method of dispute resolution whereby the parties attempt to reach an amicable settlement of their dispute or avoid future conflicts with the assistance of a neutral third party, the mediator. The mediator facilitates the exchange of information and perspectives between the parties and encourages them to explore solutions that meet their needs and interests. Unless specifically requested by the parties, the mediator does not give his or her own views (as would an expert), and abstains from making proposals (as would a conciliator)” (see www.swissarbitration.org/wp-content/uploads/2021/05/mediation_2019_webversion_englisch.pdf).

In Switzerland, mediators play a crucial role in resolving disputes amicably outside formal court proceedings. Their primary function is to facilitate the exchange of information and perspectives between the parties and encourage them to explore solutions that meet their needs and interests. Mediators are neutral and impartial. They do not impose decisions (such as arbitrators or judges) or make proposals (such as conciliators) and unless specifically requested by the parties, a mediator does not give his or her views (as would an expert). Their role is to guide the discussion to help the parties identify common interests and negotiate the terms of an agreement collaboratively.

Mediation in Switzerland has a long-standing tradition. It is particularly valued for its flexibility, confidentiality, and cost effectiveness compared to litigation or arbitration. It is used in various contexts, such as family disputes (e.g., divorce and custody), workplace conflicts, commercial disputes, and community issues.

Swiss mediators often possess specialised training in conflict resolution and adhere to ethical guidelines set by professional organisations, such as the SBA, the Swiss Chambers Arbitration Institution (SCAI), the Swiss Federation of Mediation Associations (SDM-FSM) or the Swiss Chamber of Commercial Mediation (SCCM).

Mediation, arbitration and litigation differ in their processes and outcomes. Mediation is a voluntary, collaborative process where a neutral mediator facilitates dialogue to help parties reach a mutual agreement. It is informal, confidential, and non-binding unless formalised.

Arbitration is a voluntary, but adversarial process that involves an arbitrator or arbitrators, who sit as a tribunal and render an award that is binding upon the parties.

Litigation, on the other hand, is a formal adversarial process in public courts where a judge or judges resolve the dispute through a binding judgment.

In the civil sector, the CPC governs mediation, primarily in Articles 213 to 218. These provisions outline the framework for mediation as an ADR method within the Swiss legal system. They cover aspects such as the initiation of mediation, the role and duties of mediators, the confidentiality of the process, and the relationship between mediation and court proceedings. Additionally, Article 297, section 2 of the CPC addresses mediation in the context of family law disputes, emphasising its applicability in resolving conflicts related to family matters. The court can explicitly suggest mediation to protect the best interests of the child and to help parents collaborate on visitation rights.

For criminal matters, the Swiss Criminal Procedure Code (CrimPC) does not contain specific provisions dedicated to mediation. However, it does incorporate mechanisms that allow alternative resolutions to criminal proceedings, which are similar to mediation. Notably, Article 53 of the Swiss Criminal Code permits the suspension or abandonment of proceedings if the offender has made reparation for the harm caused, provided the public interest and the interests of the victim are sufficiently addressed. Additionally, Articles 316 and 352 of the CrimPC outline procedures for summary penalty orders and simplified proceedings, which facilitate expedited resolutions when the accused admits to the offence and the legal consequences are agreed upon. These provisions aim to resolve criminal matters efficiently while considering the interests of all parties involved.

In the administrative and public law sector, there are certain notable novelties. The Federal Act on Financial Services (FinSA) contains provisions in Articles 74 et seq. requiring banks and other financial services providers to foresee and participate in a mediation proceeding for legal claims brought by their clients. The mediation process newly outlined in the FinSA originates from the formerly completely voluntary involvement of the Ombudsman in Banking Matters.

Switzerland actively encourages mediation as a means of resolving disputes. The legal framework is supportive. Although mediation is voluntary, courts may recommend that parties attempt mediation before proceeding with litigation. Once the mediation process is complete, the agreements reached can be submitted to the court for approval, making the agreement legally binding. As a result, parties obtain a legally binding and enforceable title that holds the same authority as a court judgment.

No, there is no formal power for courts to mandate parties to mediate. The Civil Procedure Code only empowers the judges to recommend mediation (Article 214, section 1) or, with respect to children’s matters, the court may ask the parents to attempt mediation (Article 297, section 2), the latter being the more forceful form of court-encouraged mediation.

No, courts cannot penalise a party for refusing to mediate. However, parties are well advised to engage in a mediation if recommended by the court. Since the content of the mediation is confidential and mediators are prohibited from testifying in court, there are no negative consequences for failing to reach an agreement. Also, there is no metric for assessing the degree of “proper” engagement of a party during the mediation process. That said, declining or refusing to participate in mediation may cause the judge to question a party’s genuine commitment to resolving the conflict in good faith. While there is no legal basis for imposing penalties, being perceived as a non-bona fide conflict party may have negative implications in the subsequent litigation.

Yes, mediation can occur at any time before or during court proceedings in Switzerland. Its timing often depends on the nature of the dispute and the willingness of the parties or court to explore ADR methods. In general, mediation tends to happen early in the process to reduce costs, or at critical junctures, for example, when the disputes seem resolvable but require a facilitated dialogue.

Below is an overview of when and why mediations take place.

Before court proceedings

• When: mediation often takes place before initiating formal legal action, as parties may seek to resolve disputes amicably to avoid the costs, time, and stress of an adversarial process.
• Drivers:
  • Parties: individuals or entities may prefer mediation for its confidentiality, flexibility, and relationship-preserving nature.
  • Lawyers: legal advisors may recommend mediation as a strategic move to achieve faster and better outcomes.

During court proceedings

• When: mediation may occur at any stage during litigation if the court deems it suitable or if parties agree to suspend proceedings to attempt an amicable resolution.
• Drivers:
  • Courts: judges may suggest or recommend mediation under Article 213 of the CPC to save judicial resources or foster a more satisfactory resolution.
  • Parties: parties may request the suspension of the proceedings to mediate the dispute.
  • Legal obligations: in family law cases, courts might recommend parents or spouses to attempt mediation (Article 297, CPC).

Mediation is considered most effective in situations where parties have ongoing relationships, or the collaboration of various stakeholders is needed. It is also considered particularly suitable for international and inter-cultural disputes as the process is more flexible and adaptable to the specific needs of the participants.

Mediation is already well established as an effective form of conflict resolution for family law disputes, workplace conflicts, commercial and business disputes, neighbourhood and community issues. It is also considered effective for resolving consumer disputes and disputes in the financial sector.

Certain disputes cannot be resolved in mediation. In civil matters, the substance of the dispute must be within the parties’ disposition. The agreement must not violate fundamental principles of law or the principle of ex officio adjudication (Article 58, section 2, CPC).

Commercial fraud can be subject to mediation in Switzerland, but its appropriateness depends on the nature of the case and the parties involved. Mediation is possible for the civil aspects of the case. If the dispute centres on the civil consequences of fraud (e.g., recovery of funds, damages, or breach of trust), mediation can be used to negotiate a resolution. This might include compensation agreements or contractual revisions.

If the fraud involves serious criminal offences, such as large-scale financial crime, money laundering or violations of public trust, it is typically not subject to mediation. The Swiss Criminal Code mandates prosecution in such cases, and mediation cannot override the criminal proceedings.

As to practical considerations, mediation allows for private resolutions, which can be appealing in sensitive business matters. Agreements reached in mediation are confidential. They may address financial compensation, apologies, or relationship repair, but they cannot absolve criminal liability.

Dispute resolution clauses mandating mediation are increasingly common in contracts, especially in the international context. These clauses often form part of multi-tier dispute resolution mechanisms, requiring parties to mediate before escalating to arbitration or litigation. In commercial agreements between Swiss parties, mediation clauses are not yet common practice. One of the reasons may be that Swiss procedural law foresees a mandatory conciliation hearing for most disputes, except those falling within the exclusive jurisdiction of the Commercial Courts.

If a party disregards the mediation requirement and files a lawsuit, courts may stay the proceedings to allow for mediation, provided the clause is clearly worded and binding. However, courts cannot force parties to resolve their dispute through mediation, as it relies on voluntary participation and amicable agreement. An attempted but failed mediation is equivalent to a conciliation hearing and claimants may request the conciliation authority to issue the authorisation to proceed (Article 213, section 3, CPC).

Mediations outside a court proceeding are understood as an informal, voluntary process and the agreements that parties may reach in such a mediation become legally binding as with any contractual agreement, i.e., with the consent and/or by signature of the parties. Mediation agreements reached during court proceedings can be validated by the court upon request of the parties. A court-approved agreement has the same effect as a legally binding decision (Article 217, CPC). The agreement that is incorporated into a court decision becomes fully enforceable, i.e., domestically and internationally, via international treaties such as the Brussels Convention.

The common agreed terms of a mediation are typically the confidentiality, impartiality, and voluntariness of the process. There are established rules of mediation and model mediation clauses that parties may choose, such as the Swiss Rules of Mediation set by the SCAI (www.swissarbitration.org/centre/mediation/mediation-rules).

The term “mediator” is not a protected professional title. It is the affiliation and accreditation with a specific mediation association (the SBA, SCAI, SCCM, etc.), or the respective titles obtained after professional training that show an individual's specific qualification as a mediator. Some of the most respected professional training courses are the Certificate of Advanced Studies (CAS) in Mediation, University of Lucerne, the CAS in Conflict Resolution and Mediation, University of Zurich, and the Specialisation Course for Mediators offered to attorneys by the SBA.

No, there are several professional associations for mediators. Please see Question 13, above.

Depending on the association and accreditation of the mediator, the ethical code of conduct may vary. Examples are the Swiss Rules of Mediation 2021, the Articles of Association of the SCCM, and the European Code of Conduct for Mediators. Typically, these codes of conduct require the mediator to adhere to the principle of independence, impartiality and confidentiality, as well as the fairness of the process.

There are no official stages. Following a preliminary phase that involves clarifying the assignment, the mediation process typically follows five structured stages:

• Preparation: negotiating the mediation agreement. The mediator works with the parties to establish the rules, guidelines and expectations for the mediation process. A mediation agreement is created, outlining confidentiality, procedural steps, and the mediator's role.
• Opening/introduction: addressing the issues. The mediator facilitates an initial meeting where all parties present their perspectives and identify the key issues they wish to address. The topics are then structured to create a clear agenda for the mediation process.
• Conflict resolution: addressing conflict areas. The core of the mediation process involves exploring the identified issues in-depth. The mediator helps the parties communicate effectively, understand each other’s perspectives, and work through their conflicts collaboratively.
• Solution phase: developing options. In this phase, the mediator supports the parties in brainstorming and generating potential solutions. The focus is on finding creative and mutually acceptable options to resolve the conflicts.
• Conclusion: finalising the agreement. The mediation process concludes with the drafting and signing of a final agreement. This document outlines the solutions and commitments agreed upon by all parties, ensuring clarity and accountability.

Switzerland has a long tradition in ADR and mediation. The infrastructure and venues are very favourable. There are many highly trained legal professionals and experienced mediators, as well as well-established organisations that facilitate mediations, such as the SBA, the SCAI or the SCCM.

Currently, the biggest obstacles to mediation are the lack of a single legal framework and a certain traditionalism favouring court-facilitated negotiations. Also, mediation does not form part of the standard curriculum at universities or law schools and most lawyers rarely encounter a mediation as part of their professional training.

There is a certain lack of awareness and a need to explain the benefits of mediation versus litigation or arbitration to potential users as well as lawyers. At times, the term mediation is misunderstood and confused with the term “meditation”. It is perceived as a “lesser” rather than advantageous alternative method for conflict resolution. A common misconception is that parties propose mediation because their case lacks legal merit. They are therefore reluctant to propose mediation in conflict situations unless mediation was previously agreed as part of the dispute resolution clause.

The perceived advantages of mediation include the flexibility of the process, the cost and time savings, party autonomy, and the confidentiality of the mediation. At its best, mediation is considered an advantageous, self-reliant form of dispute resolution where win-win solutions are possible.

The perceived disadvantages are the lack of mandatory participation and potential ineffectiveness of the process. A further perceived disadvantage is the lack of professionalism of mediators. This disadvantage has been addressed by creating specific mediation training courses and distinguishing titles for attorneys. The goal is to ensure that agreements reached in mediation are legally sound and can be validated by courts.

There is no requirement regarding the process, whether remote or in person. It is up to the parties and the mediator to agree on the most suitable format. However, it is common practice to arrange an in-person meeting.

Yes, there seems to have been an increase in the use of mediation. There are no national statistics; however, due to the changes in the FinSA, the accredited ombudsmen must report on the number of mediations since 2022. The Swiss Arbitration Centre reported that, in 2023, 91% of the 100 new cases were arbitrations, with mediation constituting a smaller fraction.

AI may be used to facilitate the mediation or administrative processes. Parties may also agree on using AI in other forms, although this may more likely be a future development.