Mediation in Switzerland
During mediation, the parties are accompanied and supported by trained and experienced mediators. The procedure aims to find an amicable and fair solution that is, if possible, legally binding. In mediation, the solution is not proposed by a third party (courts, lawyers or mediators), but it is developed (with the support of the mediator) by the persons concerned themselves.
Mediation is a voluntary process and takes place in a confidential setting. The parties must be able to talk openly about contentious issues without fear of legal consequences. It is therefore essential that a relationship of trust between the parties and the mediator be established. Professionals are required to observe strict confidentiality and are not allowed to transmit any information without formal consent of the persons concerned. Mediators are not authorized to testify in court.
Why mediation ?
International conventions on the protection of children (especially the 1961, 1980 and 1996 Hague Conventions) do not apply in all countries and do not always work satisfactorily in the contracting States. In consequence, it is not always possible to have a common legal framework in a situation of cross-border family conflict and other forms of conflict resolution may be required. Mediation is therefore appropriate in such situations, not only because it attempts to find an amicable solution, but also because mediation has its place in many cultures as a procedure with proven ability to defuse a conflict, even if it is not always used in the same way.
Mediation attempts to restore dialogue, but also to negotiate and evaluate different options.
Mediation in family conflicts
During a separation, family mediators help parents find solutions in relation to the following issues:
- Separation of the couple, without losing the role of mother and father - because your child needs both parents even after their separation
- Your child should not suffer from the separation - this is why the child’s interests are always placed at the center of mediation
- As a father / mother, you should have the opportunity to take part in the important moments of your child's life
- Family mediators support you in the development of equitable and reasonable solutions to organize contact and visitation rights
- Cultural mediators or other professionals may be involved in mediation, when both parents wish
- Grandparents and other family members who play an important role in your child's life can also participate in the mediation process, and also children themselves, in a timely manner, as long as they wish to and they are old and mature enough to do so
- Whenever possible, you can raise other important issues about the education of your son or daughter
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What can mediation bring to your child ?
Quite often, and to the children’s benefit, a solution is found more quickly through mediation than in a court proceeding. Children actually realize that even after separation, their parents always manage to communicate and that they care about their well-being.
What place has the child in mediation ?
There are several ways to involve children in mediation. In a direct way, they can make their views known during a meeting with the mediator, either alone or in the presence of parents. They may also be involved indirectly, through a child psychologist, who "represents" the child and describes their view of the situation. Throughout the process, the mediator ensures to put the best interests of the child at the center of mediation and thus gives it an important symbolic role.
Our experiences with mediation
Our experience shows that mediation, as a forum for direct communication between parents, is almost always beneficial to both children and parents involved. The earlier it is used, before the conflict deepens or involves a long legal process, the greater its chances of success.
What are the characteristics of mediation in situations of international child abduction ?
Several factors make mediation particularly complex when engaged in a situation of international child abduction, with a generally more complicated legal context and often subject to competing legal systems and the presence of compelling international law. Furthermore, given the geographical distance between parents, it is sometimes necessary to use virtual communication platforms (eg mediation via Skype) as well as hybrid techniques like “co-mediation” or "shuttle mediation ".
What does mediation cost ?
The cost of mediation depends on the terms. If conducted under the Swiss Federal Act on International Child Abduction, mediation can be partially funded by the government. The same is valid for court-ordered mediations under Article 314 of the Swiss Civil Code. In those cases the costs can be co-funded in some cantons. In many other situations, however, parents must pay the expenses related to mediation themselves. The hourly rate is generally much less than hiring a lawyer. Independent studies have shown that compared to litigation, mediation almost always performs better, is less expensive and more likely to represent the best interests of the child.