SWITZERLAND: CONCILIATION PROCEEDINGS
By Dr Lucien Valloni and Noemi Delli Colli, Partners, Valloni Attorneys at Law, Zurich, Switzerland
With the need to settle sports-related disputes, without delay, particularly in view of sporting deadlines, various forms of alternative dispute resolution methods have come into play. One of these is conciliation, which is a kind of mediation, in which the conciliator plays a more proactive role than a mediator.
Conciliation is a formal, confidential, efficient and neutral proceeding for resolving disputes outside the ordinary courts system.
In Switzerland, generally speaking, conciliation is the first step in litigation under Article 213 of the Swiss Code of Civil Procedure (ZPO).
In fact, conciliation is mandatory for most civil disputes in Switzerland.
However, there are some exceptions. These include debt collection, commercial disputes and summary procedures. Also, in disputes exceeding Sw. Frs. 100,000, parties in dispute can mutually agree to bypass conciliation, under Article 199, ZPO, and proceed directly to the courts.
So, what is the procedure to be followed in conciliation?
First of all, the claimant files a request for conciliation with the conciliation authority concerned.
The conciliation authority is appointed by the Cantons. In Zurich, for example, the local justice of the peace is the authority, acting pursuant to the provisions of Article 197, ZPO.
In the case of rental and lease disputes, there is a specialised conciliation authority, which is linked to the District Court (Article 200, ZPO).
The request for conciliation must include:
- a description of the dispute;
- details of the counterparty; and
- the relief sought.
At the conciliation hearing, the parties in dispute appear in person, or with a legal representative.
The role of the conciliator is to assist the parties in trying to reach a settlement of their dispute.
If they do so, the conciliation is successful and that is the end of the matter.
If they do not, the claimant receives an ‘authorisation to sue’ and may pursue the claim in court or by arbitration within three months (Article 209, para 3, ZPO).
If the claimant fails to pursue the claim within the time limit, the claim lapses.
It should be noted that in Swiss conciliation and legal proceedings generally, time limits are strictly enforced, as a recent Swiss Federal Supreme Court Decision, rendered on 9 September 2024, has shown (Case 4A_409/2024).
Conciliation proceedings in Switzerland have been in operation for over a century and have proved to be useful because of their procedural flexibility, confidentiality and relative speediness.
Accordingly, and generally, conciliation proceedings particularly lend themselves to the settlement of sports-related disputes.
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