CD: Over recent years, have you seen an increase in the use of mediation to resolve commercial disputes?

Litt: Mediation began to make serious inroads in commercial disputes in the US in the 1980s and 1990s, which saw the rise of programs in the courts to refer cases to mediation and training programs for mediators in law schools throughout the country. These days, state and federal courts around the country have mediation programs at the trial and appellate levels, and there are thousands of trained and experienced mediators. In complex commercial disputes, parties frequently agree to try mediation even without a court referral. This has been happening for a number of years.

Hochstrasser: Switzerland has not seen a notable increase of mediation to resolve commercial disputes. One possible reason for this is that for domestic disputes – between Swiss parties – the Swiss court system works quite well and efficiently. Moreover, and certainly different to other countries, Swiss judges actively seek to promote settlement by conducting settlement hearings. Usually, after both parties have submitted their extensive briefs, including all documentary evidence and a description of witness testimony they intend to present, the judge invites counsel and parties to an informal settlement discussion, the centrepiece of which is that the judge presents his preliminary view of the merits of the parties’ position. This process quite often leads to a settlement which both parties find acceptable because they had the opportunity to present their arguments, which they are satisfied the judge has taken into account.

Jan-Mar 2013 issue

Bär & Karrer AG

Kirkland & Ellis International LLP

PricewaterhouseCoopers AG

Skadden, Arps, Slate, Meagher & Flom LLP