Mediation is an alternative dispute resolution (ADR) method by which the parties, assisted by a neutral third party — the mediator —, seek to find a solution to their dispute themselves. Under Swiss law, civil mediation is formalised in art. 213 to 218 of the Code of Civil Procedure (CPC), which entered into force on 1 January 2011. Unlike litigation, mediation preserves the relationship between the parties and leaves them in control of the outcome of the dispute.
The legal framework: art. 213-218 CPC
The CPC devotes an autonomous chapter to civil mediation (chapter 2 of title 3, general part). These six articles lay down the essential foundations of the regime:
- Art. 213 CPC — Replacement of the conciliation attempt: at the joint request of the parties, mediation may replace the mandatory conciliation procedure. The court then suspends the proceedings for the time required.
- Art. 214 CPC — Mediation during proceedings: during judicial proceedings, the court may at any time recommend mediation to the parties. The parties may also jointly request it at any stage.
- Art. 215 CPC — Choice of mediator: the parties freely choose their mediator. Failing agreement, the court may appoint a mediator if invited by the parties to do so.
- Art. 216 CPC — Confidentiality: statements made during mediation may not be used in any subsequent judicial or arbitral proceedings.
- Art. 217 CPC — Ratification: the agreement resulting from mediation may be submitted to the court for ratification; it then acquires the force of res judicata.
- Art. 218 CPC — Costs: the costs of mediation are borne by the parties. In family matters concerning the welfare of children, partial public funding may be available depending on the canton.
Mediation vs. conciliation: an essential distinction
The CPC clearly distinguishes two pre-litigation or para-judicial procedures that follow different logics:
| Criterion | Conciliation (art. 197-212 CPC) | Mediation (art. 213-218 CPC) |
|---|---|---|
| Nature | Mandatory (before most civil proceedings) | Voluntary |
| Who conducts the procedure | Official conciliation authority | Private mediator chosen by the parties |
| Confidentiality | Limited | Full (art. 216 CPC) |
| Costs | Free or modest fees (court costs) | Borne by the parties (mediator's fees) |
| Typical duration | Single hearing (a few weeks' wait) | Several sessions over 1 to 6 months |
| Control of the process | Authority | The parties themselves |
The principles of mediation (art. 215-216 CPC)
Mediation rests on three fundamental principles that distinguish it from ordinary judicial proceedings:
Confidentiality (art. 216 CPC)
All statements, documents and information exchanged in the course of mediation are confidential. Art. 216 CPC expressly prohibits their use in subsequent judicial or arbitral proceedings. This principle is the cornerstone of mediation: it allows the parties to speak freely and to consider compromises without fear that their words will be used against them if the mediation fails.
Independence and neutrality of the mediator
The mediator is not a judge and does not decide the dispute. The mediator has no decision-making power. The mediator's role is to facilitate dialogue, to help the parties identify their real interests and to explore mutually acceptable solutions. The mediator must be independent of both parties and is not required to take a position on the merits of the law.
Voluntary nature
Mediation can only take place with the consent of all parties. Each party retains at all times the right to withdraw from mediation without having to give reasons. This right of withdrawal guarantees that mediation is never imposed and that any agreement results from a free and informed will.
When to use mediation
| Disputes suited to mediation | Less suitable situations |
|---|---|
| Neighbourhood disputes (noise, boundaries, easements) | Urgency requiring immediate interim measures |
| Family disputes (custody, parental authority, succession) | Party clearly acting in bad faith or in a position of abusive power |
| Tenancy disputes | Dispute requiring a public judicial precedent (legal principle to be clarified) |
| Contractual disputes between business partners | Party absent, untraceable or lacking capacity |
| Employment disputes (between partners, between employer and employee) | Question of absolute nullity (public policy, mandatory law) |
| Succession disputes between heirs | Liquid and due claim not subject to any serious dispute |
How mediation works
Mediation does not follow a rigid protocol imposed by law; the CPC leaves the parties and the mediator broad freedom of organisation. In practice, civil mediation generally proceeds in several stages:
- Choice of mediator — The parties agree on a mediator. They may consult the lists of certified mediators maintained by professional associations or ask the court to appoint a mediator (art. 215 para. 2 CPC).
- Signing of a mediation agreement — Before any session, the parties and the mediator sign an agreement setting out the rules of the process: confidentiality, mediator's fees, intended duration, right to withdraw.
- Opening session — The mediator presents the process, the rules of procedure and ensures that each party understands and accepts the principles of mediation.
- Joint and/or individual sessions (caucus) — The parties express their experience of the conflict and their expectations. The mediator may organise separate sessions (caucus) to allow each party to speak freely.
- Search for solutions — The mediator helps the parties to identify their underlying interests and to explore creative settlement options beyond their initial positions.
- Mediation agreement — If the parties reach an agreement, it is drawn up in writing and signed. It is recommended to have a lawyer review the agreement before signing.
- Ratification by the court (art. 217 CPC) — The parties may apply for ratification of the agreement by the competent court to give it enforcement force.
Ratification of the agreement (art. 217 CPC)
An agreement resulting from mediation has, in itself, only the value of a contract between the parties. To acquire the force of a final judicial decision and allow enforcement in the event of non-compliance, the parties must apply for ratification before the competent court.
The court carries out a formal and substantive review of the agreement:
- It verifies that the agreement does not conflict with public policy
- It verifies compliance with mandatory law (particularly in family matters)
- It ensures the free consent of the parties
If these conditions are met, the court issues a ratification decision. The ratified agreement then has the effect of a final judgment and may be the subject of enforcement proceedings in the event of non-performance.
The role of a lawyer in mediation
The presence of a lawyer is not mandatory in mediation, but is strongly recommended in disputes with significant legal or financial stakes. A lawyer intervenes at several stages:
- Preliminary advice — Assessment of the legal merits of the client's position, analysis of the risks of litigation and whether mediation is preferable to judicial proceedings.
- Assistance during the process — A lawyer may assist the client at mediation sessions. The lawyer ensures that the client does not waive rights that cannot legally be waived.
- Legal review of the agreement — Before the mediation agreement is signed, the lawyer ensures that it is legally valid, complete and corresponds to the client's interests.
- Application for ratification — The lawyer may draft and file the application for ratification before the competent court (art. 217 CPC) to give the agreement enforcement force.
For any question on Swiss civil procedure or on whether to use mediation in your dispute, PBM Avocats provides a legal analysis based on the provisions of the CPC.
Costs and duration (art. 218 CPC)
Art. 218 CPC establishes the principle that the costs of mediation are borne by the parties. These costs consist principally of the mediator's fees, which are freely agreed between the mediator and the parties. No statutory scale is provided by the CPC.
In practice, costs vary according to the complexity of the dispute, the number of sessions and the mediator's qualifications. The allocation of costs between the parties is generally defined in the mediation agreement.
Exception in family matters: where mediation concerns questions relating to children (parental authority, custody, personal relations), certain cantons provide for partial or full public funding of mediation costs, particularly for parties with modest incomes. Conditions vary by canton.
As to duration, a standard civil mediation generally lasts between one and six sessions of two to three hours each, spread over a period of a few weeks to a few months. It is therefore significantly faster than ordinary judicial proceedings.
Mediation in family matters (art. 297 CPC)
The CPC provides a specific provision for family disputes concerning children. Under art. 297 para. 2 CPC, the court may at any time order the parents to attempt mediation where the dispute concerns:
- Parental authority
- Custody of the children
- Personal relations (visitation rights)
- Maintenance contributions for children
This is a notable exception to the purely voluntary nature of mediation: the court may invite, or even compel, the parties to attempt mediation in the best interests of the child. Family mediation benefits from special rules on costs (art. 218 para. 2 CPC). For family law disputes, mediation is often preferable to lengthy and costly proceedings that exacerbate parental tensions.
Conciliation, mediation and arbitration: comparative table
| Criterion | Conciliation (art. 197-212 CPC) | Mediation (art. 213-218 CPC) | Arbitration (PILA / CPC) |
|---|---|---|---|
| Nature | Mandatory | Voluntary | Contractual (arbitration clause) |
| Third party | Official authority | Private mediator | Private arbitrator(s) |
| Decision | No — agreement or leave to proceed | No — parties' agreement only | Yes — binding arbitral award |
| Enforcement | Ratified settlement protocol | After ratification (art. 217 CPC) | Directly enforceable |
| Costs | Modest (fees) | Variable (mediator's fees) | High (arbitrators' fees + costs) |
| Confidentiality | Partial | Full (art. 216 CPC) | Yes (private proceedings) |
| Control of outcome | Parties | Parties | Arbitrator(s) |
For significant commercial disputes, commercial arbitration in Switzerland offers an alternative that is both confidential and binding. Mediation, on the other hand, is better suited where preserving the relationship between the parties is a priority objective.
Frequently asked questions on civil mediation in Switzerland
Is mediation mandatory in Switzerland?
No. Mediation under art. 213-218 CPC is entirely voluntary: it can only take place with the agreement of all parties. This must not be confused with conciliation (art. 197-212 CPC), which is mandatory before civil proceedings can be brought in the vast majority of cases. However, mediation may replace the conciliation procedure if all parties so request (art. 213 para. 1 CPC).
What is the difference between mediation and conciliation?
Conciliation (art. 197-212 CPC) is conducted by an official conciliation authority (justice of the peace, rent tribunal, etc.); it is in principle mandatory before any civil proceedings and free of charge for the parties. Mediation (art. 213-218 CPC) is conducted by a private mediator freely chosen by the parties; it is optional and its costs are borne by the parties (art. 218 CPC). Mediation offers greater confidentiality and procedural flexibility.
Is a mediation agreement enforceable?
A mediation agreement does not in itself have enforcement force. For it to acquire the effect of a final decision, the parties must apply to the competent court for ratification (art. 217 CPC). The court ratifies the agreement if it does not conflict with public policy or mandatory law. Once ratified, the agreement may be enforced in the same way as a judgment.
Can statements made in mediation be used in court proceedings?
No. Art. 216 CPC establishes the principle of confidentiality of mediation: statements made by the parties during the mediation procedure may not be used in subsequent judicial or arbitral proceedings, unless the parties agree otherwise. This principle is fundamental to enabling frank exchanges without the risk that concessions made in mediation will be used against their author before the court.
Who can act as a mediator in Switzerland?
The CPC does not impose formal qualification requirements for mediators in general civil matters: the parties are free to choose any person with the necessary competence. In practice, mediators are often lawyers, psychologists, notaries or specialists in the relevant field. In family matters, the cantons are required to make available a list of qualified mediators (art. 136 para. 2 CPC). Professional associations — such as SDM-FSM — issue recognised certifications.