Mediation

Mediation is a voluntary, non-binding and confidential process. It can be initiated at any time. Ideally, it is initiated before the case is referred to the courts. However, it can also take place during legal proceedings.

The framework of the mediation is adapted to each case, in consultation between the mediator and the participants. It serves as a basis for discussion throughout the mediation.

• The mediator guarantees the proper conduct of the mediation.
   
• He/she ensures that everyone's speaking time is respected and that there is a good understanding between the participants.
   
• He/she facilitates communication and invites the protagonists to express their respective points of view in order to highlight the real causes of the conflict. In this context, the participants will seek and find together, with the help of the mediator, tailor-made, original and forward-looking solutions that will put a definitive end to all their disputes.

Mediation is different from conciliation and negotiation.
 

Conciliation

Conciliation is the judicial form of amicable dispute resolution. Unlike the mediator, the judicial authority is not chosen by the parties.

The purpose of the conciliation hearing is to allow the parties, thanks to the intervention of the third party conciliator, in a confidential and informal setting, to find an amicable solution to their dispute.
 

The judicial conciliation has the following characteristics:

• Depending on the nature of the dispute, especially in civil proceedings, the conciliation attempt is mandatory. Most of the time, it is free of charge or not very expensive (no judicial fees), except for the lawyer's fees, which the parties have to pay unless legal aid is granted.
   
• Depending on the nature of the dispute, the conciliation attempt may be conducted by a magistrate or a specialized collegial judicial authority (for example, in matters of leases and rents). In other cases, for example in family disputes (divorce), it is entrusted to the judge called upon to settle the dispute, if the attempt fails.
   
• Based on an initial legal analysis of the facts, the judicial authority can informally give its opinion on the foreseeable outcome of the dispute and/or propose solutions that the parties are free to accept.
   
• The conciliation primarily deals with the positions of the parties and their mutual claims as they appear in the submissions made in the court proceedings. It usually takes place at the beginning of the proceedings. However, it can be attempted at any time during the proceedings.
   
• The conciliator can also lead the parties to find broader solutions or solutions more adapted to the interests of each party by integrating into the discussions issues not included in the subject of the dispute.
   
• In certain specific cases, the conciliator sometimes has the power to render decisions or issue proposals of judgment.
   
• In the event of an agreement, total or partial, it leads to a transaction formalized by the judicial authority, which is equivalent to a judgment.
   
• If the attempt at conciliation fails at the beginning of the proceedings, the applicant(s) will be granted permission to bring their action before the authority of first instance.

Negotiation

Negotiation is an informal process by which the parties, most often without the help of a third party, try to reach an agreement to build their relationship or to end a conflict. It usually results in an out-of-court agreement (under private signature).

Unlike the judge, the mediator does not impose any solution on the protagonists. He/she acts as a facilitator between the parties and accompanies them through the stages of mediation to help them find a solution to the conflicts that oppose them.

The mediator can approach the conflicts in a global way in order to favour above all the restoration of the dialogue and the taking into account of all the aspects of the conflict, while the judicial authority will be able to be interested only in the aspects covered by the legal, by being bound by the submissions of the parties.

Mediation thus allows the participants to put an end to their dispute in a voluntary and consensual manner. It is even frequent to witness after the signature of the mediation agreement by the protagonists, the resumption of a relationship between them, whether it is in the commercial, family, neighborhood or work field for example.
 

In addition, mediation carries the following benefits:

• Mediation is strictly confidential. It allows participants to speak freely and to present documents or information that they do not wish to disclose outside the mediation process. The mediator is bound by confidentiality and cannot be summoned as a witness in any parallel or subsequent legal proceedings. The existence of the mediation process and the possible final agreement reached by the protagonists are not covered by confidentiality.
   
• Mediation is independent of the court proceedings. Regardless of the outcome of the mediation, the statements of the participants cannot be taken into account in the event of a lawsuit. The mediator's file cannot be used in legal proceedings.
   
• Mediation is generally of short duration and can be completed in a few sessions, or even in a few hours. The total duration of the mediation is, in any case, not comparable to that of a judicial proceeding which can sometimes last several years, in particular if the parties request numerous acts of investigation (hearings of witnesses, expert opinions, exchanges of writings) or appeal against decisions.
   
• Mediation is generally more cost-effective than a judicial proceeding, especially in view of its duration and because it allows to save costs linked to legal fees, to the costs of certain investigative acts (remuneration of witnesses, costs of expert opinions, translation or even interpretation costs) and to lawyers' fees, in particular those incurred by the drafting of pleadings and the holding of hearings. Under certain conditions, mediation may be partially or fully covered by the Judiciary Power. This is particularly the case in criminal matters or in matters of adult and child protection.
   
• Mediation is efficient: according to the Swiss Federation of Mediation Associations, the success rate is close to 90% when the parties agree to enter into mediation.
   
• The mediation process can generally be conducted in the language of the participants, while the court proceedings are conducted in French, if necessary with the assistance of an interpreter.
   
• Mediation is a comprehensive and flexible process that does not have a strict framework like a court case. It allows for a lasting resolution of conflicts and safeguards or restores the bonds between the participants.

It is particularly appropriate to use mediation in any situation where the people in conflict have or have had a long-term relationship, such as when they are members of the same family or live in the same building or work in the same office.

Mediation is also appropriate when the persons concerned will be in contact with each other in the future: it safeguards or restores the quality of the relationship, including for the future.

Mediation also makes it possible to separate with dignity, without clashes and by preserving the people, whereas the legal proceedings can, according to the attitude of the parties and their lawyers, aggravate the conflict.

Any litigation is compatible with mediation, subject to the few cases in which it is excluded by law.
 

Some examples of disputes that may be resolved in this way are listed below:

Family Relationships

There are examples of effective and successful mediation for all intra-family conflicts, whether they are relational or patrimonial.

Examples:

• Dispute between a parent and his/her adult child regarding payment of the latter's expenses.
• Conflict between heirs in relation to the division of an estate.
• Separation of unmarried persons when it comes to the division of jointly acquired property.
• Arrangement of contact between children and their parents after divorce.
   

Professional relationships

In professional relationships, mediation helps to avoid the deterioration of a situation that is getting worse or to resolve a situation that is detrimental to the individuals and the company.

Examples:    

• Conflict between colleagues
• Conflict with a superior or subordinate
• Conflict between services and between departments
• Conflict with a client or a service provider of the company
   

Daily life

In the field of daily life, mediation can interrupt the escalation of animosity relationships that can plague life.

Examples:

• Conflict between tenants in the same building
• Conflict between roommates
• Conflict with a janitor
• Conflict between neighbours who own their own home
• Conflict between owners of condominiums or apartments in condominiums
• Conflict related to the use of parking spaces
   

In the business world

In the business world, mediation has proven to be an effective tool for safeguarding commercial relationships that are often vital to the company.

Examples:

• Conflicts between partners
• Conflict in relation to a delivery contract
• Conflict with an important customer
• Conflict with a subsidiary company
• Family business
• Company successions
   

Ciminal mediation for adults

Criminal mediation is a process by which the public prosecutor in charge of the case appoints, with the agreement of the parties to the proceedings, a mediator in order to offer the protagonists the possibility of seeking a freely negotiated solution with the aim of putting a definitive end to the prosecution.

This may include cases in which the criminal proceedings are directly related to the acts and conduct of the disputing parties towards each other (assault, defamation, wilful defamation).

If the process is successful, the public prosecutor may, if the conditions are met, terminate the criminal proceedings by abandoning the case.

For more information
 

Criminal mediation for minors

The Tribunal des mineurs may encourage the parties to engage in mediation. If mediation is successful, the case is abandoned.

The mediation process contributes to the educational goal sought by the law, in particular by allowing the accused person to take responsibility for the injured person(s) or the victim(s). It also gives the complainant a more important place than that reserved for him by the juvenile criminal Procedure code.
 

Administrative mediation

In the event of a bad experience, disagreement or conflict with a service of the cantonal or communal administration or with another public body in Geneva, a citizen may refer the matter to the cantonal administrative mediator. The Geneva University Hospitals (HUG) or the police also have a mediation body that is able to accompany a process of amicable settlement of the dispute.

It should be noted that the cantonal administrative mediator has no jurisdiction to examine a case that is the subject of ongoing legal proceedings or that has already been decided in law, unless the latter is suspended with a view to an amicable settlement before him/her.

For more information

The process

Establishing contact

One or both of the parties, or their lawyers, may contact a mediator directly, or they may contact an organization that can help them make this choice. It is also possible that in the course of legal proceedings, the judge encourages the parties to try to settle all or part of their dispute through mediation.

If only one party initiates the mediation, the mediator invites the other party to participate in the process.

The mediator may invite the parties separately or jointly to a preliminary meeting. During this preliminary meeting, the mediator explains the mediation process, the conditions necessary for its success, his/her role, the role of the parties and, if applicable, that of their lawyers; he/she presents a mediation agreement. He/she listens to the protagonists who present their vision of the conflict.

The mediator then receives the protagonists for one or more mediation sessions, which will take place either at the mediator's home or at another neutral location chosen by agreement between the protagonists.

A mediation is usually conducted over half a day or in several sessions lasting from 1h30 to 2h. Depending on the complexity of the case, it can be extended over several additional half-days or sessions. The mediation schedule is set by mutual agreement between the parties and the mediator, depending on the availability of each party.
 

During these sessions, the mediator:

• Listens to the protagonists
• Allows everyone to express themselves and describe their perception of the conflict
• Improves dialogue and listening between stakeholders
• Helps the protagonists to identify their wishes, needs and interests
• Promotes the search for creative and innovative solutions
• Helps the protagonists to draft the final agreement
• Ensures that all measures are taken to guarantee the execution of the agreement reached by the protagonists
   

The role of the lawyer in mediation

Mediation does not exclude the participation of the lawyer.

The participation of the lawyer in the mediation process is often beneficial to the resolution of the conflict. It is sometimes indispensable, especially when the final agreement must be ratified by the judicial authority and it is necessary to verify that the conditions laid down by law are met.

The involvement of lawyers can thus facilitate the mediation process and help to achieve a satisfactory outcome.
 

Prior to the mediation:

• The lawyer explains the mediation process to his/her client, assesses its advantages and disadvantages, and the possible risks of going to court.
   
• With the client's agreement, the lawyer proposes mediation to the other party to the dispute.
   
• He/she prepares the mediation process by defining with his/her client a strategy favourable to the process of amicable settlement of the dispute. He/she helps the client to take the necessary distance and to identify his/her needs and interests.
   

During and at the end of the mediation:

• The lawyer can assist his/her client, if necessary, during the preliminary interview, or even accompany him/her during the subsequent sessions if the parties so desire. He/she reassures and advises the client on the legal scope of his/her position.
   
• If an agreement is reached, the lawyer verifies its legal compatibility and explains the issues to his/her client. He/she helps formalize the terms of the agreement in collaboration with his/her colleague, the mediator and the parties.
   
• If no agreement is reached, the lawyer organizes the initiation or continuation of legal proceedings, if necessary.

In Geneva, the exercise of the profession of sworn mediator is subject to an authorization of the State Council.

In accordance with the law, registration on these lists guarantees to the public that the mediators have recognized training courses (university degree or training deemed equivalent), that they are professionally qualified and have particular skills in mediation, as well as sufficient experience or knowledge in the field.

The mediator's fee may vary depending on the number of parties involved and the nature and complexity of the conflict. The parties are informed at the outset of the hourly rate applicable to the preliminary meeting, the sessions and the work carried out in direct connection with the mediation. The distribution of the mediator's fees is agreed upon by the parties.
 

Hourly or lump sum rates

The parties and the mediator may agree on an hourly rate, a daily rate or a global rate.

Mediators who are dependent on an association or organization may be subject to its own fee schedule. Independent mediators are free to apply the rates in proportion to their service and level of expertise.

• The hourly rates charged are between Fr. 100.- and Fr. 500.- per hour.
• The lump-sum rates are between Fr. 800.- and Fr. 2'500.- per day.

These fees can vary greatly in the case of family or commercial mediation.
 

Administrative fees and disbursements

The mediator may charge a flat rate administrative fee as well as disbursements for expenses directly related to the mediation, such as room rental or ordering meal trays.

At the end of the mediation process, the drafting of a mediation agreement at the request of the protagonists can be invoiced additionally according to the time spent.
 

Possibilities of total or partial reimbursement of costs

Under certain conditions, the mediation process can be partially or totally covered by the Judiciary Power:

• In case of entitlement to legal aid, the use of mediation can be financed by the state. The request must be made before the first session at the Greffe de l'assistance juridique. Legal aid cannot be granted retroactively. It should be noted that legal aid is granted on an individual basis: it does not cover the cost of the entire mediation, but only the part to be paid by the party who benefits from it.
   
• In the case of criminal mediation for adults, implemented on the proposal of the Public Prosecutor's Office, the costs and fees of the mediator are in principle covered by the Judiciary Power up to a maximum of Fr. 1'000.-, except in the case of complex financial disputes.

• In the case of criminal mediation for minors, implemented on the proposal of the Tribunal des mineurs, the process is fully supported by the Judiciary Power.
• Before the Tribunal de protection de l'adulte et de l'enfant, when the judge urges the parents to try mediation, 3 sessions are paid for by the Judiciary Power.

At the beginning of the process, the participants in the mediation, i.e. the protagonists and the mediator, sign an agreement that formalizes their commitment to the mediation and specifies the conditions under which it will take place.

This agreement, which can be adapted according to the needs of the protagonists and the circumstances of the case, includes the following points:

• Mention of the participants and the subject of the conflict
   
• Principles governing the intervention of the mediator
   
• Principles governing the behaviour of the participants in mediation
   
• Confidentiality clause
   
• Basis for the mediator's remuneration
   
• Eventual calendar or schedule of the sessions