The FinSA stipulates that clients can seek a mediation procedure with a state-approved ombudsman for all disputes concerning legal claims between clients and financial service providers. For this purpose, financial service providers must join an approved ombudsman's office.
The Federal Act on Financial Services ("FinSA") came into force on 1 January 2020. The FinSA stipulates that clients can seek a mediation procedure with a state-approved ombudsman for all disputes concerning legal claims between clients and financial service providers. For this purpose, financial service providers must join an approved ombudsman's office. The aim of the mediation procedure is to promote the alternative dispute resolution and thereby avoid time-consuming proceedings. This should also result in a decrease in the litigation expense risks.
The mediation procedure with the ombudsman's office is initiated by the request for mediation. Such a request is admissible if the following conditions are met:
The mediation process must be straightforward, fair, fast and impartial. It must also be cost-effective or free of charge for the client. Furthermore, all statements made by the parties are confidential and may not be used in any other proceedings. The other party has no right to be given access to the other party's correspondence with the ombudsman's office. The procedure will be conducted in the national language chosen by the client (see art. 75 FinSA).
The ombudsman offices have no decision-making authority. However, if no agreement can be reached or if such an agreement appears impossible, they can provide their own factual and legal assessment (art. 75 para. 8 FinSA). Such an assessment serves as a proposal for the dispute resolution and has no legally binding effect. A mediation procedure according to art. 74 et seq. FinSA also does not exclude a civil lawsuit. However, after the proceedings have been conducted with the ombudsman office, the claimant may unilaterally waive the conciliation procedure pursuant to the Civil Procedure Code (art. 76 para. 2 FinSA). The mediation procedure is terminated by the ombudsman's office as soon as a conciliation authority, a court, an arbitral tribunal or an administrative authority is involved in the matter.
According to art. 84 FinSA, the ombudsman offices require the approval of the Federal Department of Finance. The following ombudsman offices have already been approved:
We recommend the ombudsman’s office OFS Ombud Finanzen Schweiz, in which one of our legal partners, Dr. Balz Hösly, SBA Mediator, is acting as a mediator.
For a successful dispute resolution, the physical presence of the parties involved in the dispute is often an advantage. Nevertheless, it can be assumed that the newly formed ombudsman offices will also seek to make processes and procedures available to financial service providers in the FinTech sector, where dispute resolution is largely carried out via video calls and digitally. This can provide a high degree of convenience for "typical" clients of FinTech companies ("users"), who often are residents abroad and travel a lot.