Confidence in Alternative Dispute Resolution: Experience from Switzerland

Christof Schwenkel

doi:10.18352/ijca.134

Abstract

Alternative Dispute Resolution plays a crucial role in the justice system of Switzerland. With the unified Swiss Code of Civil Procedure, it is required that each litigation session shall be preceded by an attempt at conciliation before a conciliation authority. However, there has been little research on conciliation authorities and the public's perception of the authorities. This paper looks at public confidence in conciliation authorities and provides results of a survey conducted with more than 3,400 participants. This study found that public confidence in Swiss conciliation authorities is generally high, exceeds the ratings for confidence in cantonal governments and parliaments, but is lower than confidence in courts. Since the institutional models of the conciliation authorities (meaning the organization of the authorities and the selection of the conciliators) differ widely between the 26 Swiss cantons, the influence of the institutional models on public confidence is analyzed. Contrary to assumptions based on New Institutional-ism approaches, this study reports that the institutional models do not impact public confidence. Also, the relationship between a participation in an election of justices of the peace or conciliators and public confidence in these authorities is found to be at most very limited (and negative). Similar to common findings on courts, the results show that general contacts with conciliation authorities decrease public confidence in these institutions whereas a positive experience with a conciliation authority leads to more confidence. The Study was completed as part of the research project 'Basic Research into Court Management in Switzerland', supported by the Swiss National Science Foundation (SNSF). Christof Schwenkel is a PhD student at the University of Lucerne and a research associate and project manager at Interface Policy Studies. A first version of this article was presented at the 2013 European Group for Public Administration (EGPA) Annual Conference in Edinburgh.

Highlights

In the last decades, many European and non-European states have introduced or increased the use of mechanisms of Alternative Dispute Resolution.2 This has been the case for Switzerland, where conciliation has a “long and profound tradition” (Meier 2003: 343) and “always has enjoyed a more prominent role than litigation and adjudication” (Meier 2008: 4)
Notes: Contacts with institutions is measured using responses to the questions: Did you ever have a contact with a conciliation authority/conciliator/justice of the peace in your canton; did you ever have a contact with a court in your canton? Did you ever have a contact with a federal court? Participation in an election is measured using responses to the questions: Did you ever vote in an election of a justice of the peace/conciliator in your canton? Did you ever vote in an election of judges in your canton? Calculations are based on weighted data
Summary and Conclusions Alternative dispute resolution plays an important role in the Swiss judicial system

Summary

Introduction

Many European and non-European states have introduced or increased the use of mechanisms of Alternative Dispute Resolution. This has been the case for Switzerland, where conciliation has a “long and profound tradition” (Meier 2003: 343) and “always has enjoyed a more prominent role than litigation and adjudication” (Meier 2008: 4). Institutional Models of Conciliation Authorities Comparative political science frequently makes use of typologies, which provides the opportunity to classify broad empirical diversity into a few categories and to reduce complexity (Lauth 2009: 154) This is essential in order to compare a larger number of cases (for example the 26 Swiss cantons). The following three types were defined on the basis of the different institutional models in the 26 cantons: - Type 1: This type includes the cantons where the conciliation authorities do not form a stand-alone-institution, but are incorporated into a court of first instance This is most often the case in those cantons which have lately introduced mandatory conciliation proceedings as a consequence to the unified CCP. The following table gives an overview of all 26 cantons

No special election of conciliation authorities

Cantonal parliament

Contact with

Findings

Independent Variables