Encouraging mediation

The State encourages mediation and other alternative dispute resolution methods."

This is provided for in article 120 of the Geneva constitution.

Over the past few years, work has been carried out to implement this provision, in particular following the adoption by the Cantonal parliament, in 2018, of the resolution M 2449 and by the State council, in 2021, of a draft law.

For its part, the Judiciary power has set up an interdisciplinary working group, including representatives from the Bar association, the Association des juristes progressistes, the Fédération Genevoise MédiationS, the Antenne de médiation et de prévention d’Astural, the ScopalE, the Department of security, the Department of public instruction, training and youth, as well as the Cantonal administrative mediator. The working group drew up an inventory of existing measures to promote the development of mediation and a list of additional actions to be taken to this end, notably in the fields of information and publicity, interaction with legal proceedings, training, financial aid and networking.

The group's work also led to the joint drafting of a general amendment to the draft law and, ultimately, to the adoption of the Mediation Act by the Cantonal parliament in January 2023.

The aim of the law is to promote the use of mediation as a means of contributing to social peace and limiting the recourse to the courts in social relations.

To this end, it provides for an innovative and ambitious scheme, including the following measures to encourage mediation:

• A broad public information
• Strengthening training opportunities for practitioners
• Financial incentives
• Establishment of a mediation office

The Judiciary power and its partners are actively working to implement the law, which will come into force in January 2024.

The Judiciary power is mandated by law to implement the mediation incentive scheme, by providing the necessary administrative, financial and logistical support. 

Fields

The scheme aims to promote mediation in all fields:

• In civil matters, for example in case of family or inheritance disputes, in the workplace or in connection with housing (rental agreement, neighborhoods, etc.), as well as in the commercial field.
• In criminal matters, whether for minors or adults. In both cases, the magistrate in charge of the procedure helps to initialize the mediation process. 
• In administrative matters, the system will redirect people in conflict to the administrative mediation Office or to other existing specialized structures (police or HUG mediation bodies, for example). However, it cannot be ruled out that some disputes in this field may be handled by sworn mediators, e.g. between neighbors in the context of construction law proceedings. 

Steering

The mediation incentive scheme is overseen by a commission made up of 2 mediators appointed by the Mediation commission, 2 lawyers elected by the lawyers registered in the cantonal register, 3 magistrates appointed by the Commission de gestion du Pouvoir judiciaire and the General Secretary of the Judiciary power who chairs the Commission.

   The steering committee is composed of:

• Mr. Patrick BECKER, General Secretary of the Judiciary power
• Mr. Yves BERTOSSA, Chief public prosecutor
• Mrs. Emmanuelle DUFOUR-IMSAND, vice-président of the Tribunal civil
• Mrs. Michèle PERNET, Judge at the Tribunal administratif de première instance
• Mrs. Pascale BYRNE-SUTTON, sworn mediator
• Mr. Philippe SCHNEIDER, sworn mediator
• Mrs. Diane BROTO, lawyer
• Mr. Philippe COTTIER, lawyer

Its first task will be to select the sworn mediators who will run the mediation Office. It will then propose any measures to improve the scheme, including awareness-raising and training.

It will monitor the operation of the scheme by identifying any difficulties encountered by the mediation Office, to propose corrective measures, where appropriate.

It will also monitor the development of indicators and statistics, as well as the allocation of financial resources. Finally, it will draw up an annual activity report, which will be submitted to the Cantonal parliament and to the Commission de gestion du Pouvoir judiciaire.

Operation

Attached to the Judiciary power which will house it in premises at the Courthouse, the mediation Office will be staffed by sworn mediators who will run it on a daily basis. The Office is placed under the authority of a coordinator and will open in January 2024.

Missions and services

The first mission of the Office will be to inform the public and professionals by widely disseminating all useful information on this method of amicable dispute resolution, and by guaranteeing the consistency of the information provided by all the players involved in dispute resolution.

The Office members will play a key role in helping to initiate mediation processes. To this end, they will receive communications from magistrates who have encouraged parties to legal proceedings to seek information or attempt mediation. If necessary, they will redirect the parties concerned to specific out-of-court settlement mechanisms, explaining how the mediation process works and outlining its advantages. More generally, they can be consulted by any interested party, with or without an appointment and regardless of the existence of legal proceedings.

Depending on the nature of the dispute, and if the parties concerned have not identified a mediator, the mediation Office may also suggest names of mediators from the list drawn up by the cantonal administration.

Designed as a genuine interface, it will act as a link between mediation and any legal proceedings, informing the court in question, for example, when an agreement settles a dispute or, on the contrary, alerting it to the failure of the process.

Financial incentives

Free of charge service is an important leverage for promoting mediation. The Office will therefore grant the following financial incentives at the request of interested parties.

• Mediation sessions - Persons involved in a dispute may request the office to pay for a mediation session (7.5 hours of mediation, renewable up to 3 times), which will be granted under the following conditions:
  
  o The mutual and concordant will of the parties concerned
  o recourse to a sworn mediator registered in Geneva
  o The dispute must be sufficiently linked to the canton of Geneva.
   
• Co-mediations - When justified by special circumstances, the Office may also grant financial support for the activities of a co-mediator, at the request of the parties and the appointed mediator.
   
• Lawyers' fees - At the request of the party concerned, and if necessary, the Office will cover part of the cost of the lawyer's fees (2.5 hours at the start of the process), to encourage the party to enter mediation.
   
• Legal advice - In exceptional cases, and at the mediator's request, the Office may authorize the payment of legal fees to provide expert advice when a specific legal issue needs to be clarified before the process can be completed.