Conciliation or mediation?

Conciliation or mediation?

 "I was summoned to a conciliation hearing as part of proceedings brought by my neighbour. During the hearing, the judge advised mediation. I don't understand the difference with the conciliation hearing I attended..." V, Jussy

Conciliation and mediation are two concepts defined by the Swiss Code of Civil Procedure. They represent two avenues available to litigants seeking a compromise solution to put an end to their dispute or at least to resolve it.

When a person brings a claim before a court, the judge is obliged to convene a conciliation attempt hearing at which the parties must appear in person. During this hearing, the judge or ad hoc committee considers the documents filed, hears the parties and tries to guide them towards an agreement informally. Most proceedings must be preceded by an attempt at conciliation, with a few exceptions such as divorce or debt collection proceedings, etc. Nothing said at the conciliation hearing is to be recorded in the minutes or taken into account subsequently. This means that if either party makes any proposals or concedes any facts, no one can subsequently rely on them. This is one of the reasons why the judge who sits in conciliation is not the same as the one who will handle the rest of the proceedings, should they continue.

If an agreement is reached, it is signed by the parties and has the effect of a final court decision. If the parties are unable to reach an agreement, an "authorisation to proceed" is issued to the plaintiff, allowing him to continue his action by bringing the matter before the competent court within a time limit that is normally three months, but only 30 days, for example in proceedings relating to tenancy law.

Mediation, on the other hand, is not a compulsory stage of the proceedings and is initiated by mutual agreement between the parties outside the strict framework of the courts. Unlike conciliation, the aim of mediation is to enable the parties to discuss their dispute without the presence of third parties (such as lawyers, judges or arbitrators). The mediator will direct the conversation by facilitating exchanges while refocusing the debate on the central problems and their solutions. There are certified mediators who have undergone in-depth training. Mediation, like conciliation, can lead to an agreement that will be treated as a legally binding decision, once ratified by the judge.