FAQ

Why consider an extrajudicial dispute resolution?

A lot of people believe that they are bound to go to court when they do not find a solution to a dispute by discussing with the other party, directly or through their counsel. 
 
Yet, before seizing a State court, it is worth carefully considering the possibility to resort to extrajudicial dispute resolution, through arbitration, conciliation, mediation or other means.

The effectiveness of these means is now proven, as well as the time, money and energy savings they offer to the parties.​

What is an arbitration and what are its advantages?

Arbitration is a well-known dispute resolution method on the international scale. It allows the parties to obtain from an arbitral tribunal, chosen by them and composed of a sole arbitrator or three persons, a decision (award) having the same legal value as a State Court’s judgement. 
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Compared to proceedings before a State court, it offers the parties the advantage of :

  • letting them choose the person(s) who will decide the dispute
  • giving them the possibility of integrating into the arbitral tribunal specialists of their choice in relevant fields, e.g. architect, engineer, accountant, notary, tax expert, doctor, etc.
  • influencing the choice and modalities of the procedure to be followed
  • in general, reaching a decision more quickly to end the dispute.  

What distinguishes conciliation from mediation? ​

The terms conciliation and mediation are not used everywhere and by everyone in the same way. Sometimes, the term “conciliation” is reserved to the intervention of a third party designated by the State (e.g. a judge), any intervention by a private third party being called “mediation”.   

In Switzerland, conciliation and mediation are both generally defined as a confidential process whose goal is to reach, as much as possible, an agreement between the parties putting an end to a dispute. They imply one or several meetings, during which the conciliator or mediator will guide the parties towards the possible solutions, so that they can choose at the end the most adapted to their situation. Contrary to the arbitrator, neither the conciliator nor the mediator is vested with the power of rendering a binding decision. 

The differences between conciliation and mediation are therefore essentially related to the way the process will be conducted: 

  • the conciliator will generally play a more active role in resolving the dispute, in the sense that he will be able, if necessary, to give his opinion on the issues in dispute, something that a mediator that a mediator would not traditionally do
  • mediation often seeks more than conciliation to explore the origins of the dispute in order to rebuild the relationship between the parties
  • legal considerations may be more influential in conciliation than in mediation. 


These differences will therefore fade : 

  • when the conciliator stays more set back, in order to let the parties self-determine and resolve the difficulties by themselves and when conciliation focuses on parties’ interests and needs which are not legally important
  • when the mediator, at the request of the parties, gives his opinion on the contentious issues and when mediation brings legal questions to the forefront.

Why do conciliation and mediation work? ​

When appropriately conducted, conciliation and mediation are effective because the parties are led by the conciliator or mediator to: 

  • better communicate with each other 
  • focus on the issues to solve
  • overcome emotional obstacles
  • generate innovative solutions, that can not only resolve the dispute but also prevent future difficulties or solve collateral problems.

 
More and more lawyers, concerned about protecting their clients’ interests, are now referring their clients to conciliation and mediation. 
 
Their experience has convinced them that the flexibility, speed and cost containment that characterize these processes, combined with the real prospect of obtaining a negotiated solution accepted by all parties, make them first-rate tools in the resolution of disputes.

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