1. What is a conciliation proceeding?
The aim of the conciliation procedure, which is usually mandatory under the Swiss Code of Civil Procedure (CPC), is to enable the dispute to be settled quickly within a mediation-like hearing administered by a state authority. In other words, the goal of the conciliation is to reach an amicable agreement that is acceptable to both parties and, ideally, conciliatory in nature. The principle of "first conciliate, then judge" applies.
Only in certain exceptional cases can the conciliation proceeding be dispensed with, and litigation proceedings be initiated directly by filing a lawsuit with the competent court (art. 198 et seq. CPC). As part of the revision of the CPC, which will come into force on 1 January 2025, the conciliation proceeding will be expanded in some areas by extending the competence of the conciliation authority and introducing the possibility of voluntary conciliation to certain proceedings that until now did not have that possibility.
2. Extended possibilities for conciliation proceedings
Under the current law, no conciliation proceedings take place if the law declares a single cantonal instance to be competent for a particular dispute. This is also true for actions that fall within the jurisdiction of the commercial courts.
However, from 1 January 2025, voluntary conciliation proceedings will be introduced for most of these disputes (art. 199 para. 3 nCPC). Specifically, in cases in which the jurisdiction of a single cantonal instance or the commercial court is provided for, the claimant will, in the future, have the option of either filing a lawsuit directly with the competent court or first submitting a request to the conciliation authority to initiate conciliation proceedings.
3. Extension of the competence of the conciliation authority
In addition the authority of the conciliation authorities is being expanded. Under the new law, they may submit a so-called decision proposal (previously called a judgment proposal) to the parties up to an amount in dispute of CHF 10'000. This proposal is deemed to be accepted and has the effect of a legally binding decision if neither party rejects it within 20 days of the written notification. Under the previous law, decision proposals were only possible up to an dispute amount of CHF 5'000.
The authority of the conciliation authorities to make binding rulings, i.e., to actually decide a monetary dispute continues to exist only up to a disputed amount of CHF 2'000 and only if the claimant files a corresponding request for a binding decision.
4. Scope of the changes
Overall, the revised CPC strengthens the conciliation process. The new voluntary conciliation procedure means that, where there is a prospect of an amicable settlement, a conciliation procedure can optionally be initiated for disputes that were previously excluded from conciliation. In addition, limitation periods can be easily interrupted by filing a conciliation request, which is particularly relevant for non-monetary claims, where the initiation of debt enforcement proceedings to interrupt the limitation period is not available. The same applies if the debtor has no place of debt enforcement in Switzerland, and thus the uncomplicated debt enforcement procedure is not available.
Also, due to the extended authority of the conciliation authorities, it is expected that the courts will be relieved of some of their caseload and an even greater proportion of cases can be settled in conciliation.
The VISCHER dispute resolution team will be happy to answer any questions you may on this topic. In addition, we can support and represent you competently and efficiently, whether in conciliation proceedings or with a claim directly before the commercial court. Please do not hesitate to contact us.
Here you will find the overview of the CPC blog series.
Author: Aline Mata
