Themes: Family law, mediation, legislative developments, advice for young lawyers, Brodard Avocats.
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Hello Ms. Brodard. You are the co-founder and a lawyer specializing in family law at Brodard Avocats SA. Could you tell us about your career, from your beginnings to the co-founding of Brodard Avocats SA?

After completing my law studies at the University of Fribourg and obtaining my law degree, I initially worked as a court clerk before joining the legal department of the Schellenberg Wittmer law firm in Geneva. Later, I partnered with an existing firm and, driven by a desire for expansion and specialization in family law, I co-founded Brodard Avocats SA. The firm focuses exclusively on family law cases (divorce, separation) and Swiss and international tax law.

What specifically attracted you to family law and mediation?

Family law combines both human and technical aspects. Helping parties navigate a particularly challenging phase in their lives, while providing the necessary technical expertise, such as calculating maintenance payments and managing the dissolution of marital property, is the main source of motivation for me in my profession.

Mediation and collaborative law are tools that allow parties, with the help of a third party, to find sustainable and less expensive transactional solutions compared to a court-imposed decision. Since the entry into force of the Swiss Civil Procedure Code on January 1, 2011, the legislative anchoring of mediation has given it a place among the available tools for litigants, lawyers, and judges. It is now legitimized in courtrooms and has shed its purely psychotherapeutic connotation.

How does your court experience influence your mediation practice?

Mediation is regulated by Articles 213 to 218 of the Swiss Civil Procedure Code. It is offered to parties as an alternative to conciliation. Mediation now plays two roles in civil proceedings: it can act as an alternative to a conciliation request or as an incidental procedure in ongoing litigation, either in the first or second instance.

The legislative anchoring of mediation undoubtedly enhances the understanding of this process among courts, parties, and lawyers. Mediation is now a tool used by the justice system to support dispute resolution.

The judicial and extrajudicial worlds are no longer antagonistic and now work more closely together to help parties resolve their disputes.

Gender equality in the choice of family names continues to be a debated issue in Switzerland. What is your opinion on this?

The focus should be on the free choice of spouses, who currently only have the option to adopt a common name or each keep their own maiden name. The National Council's vote in June 2024 in favor of reintroducing the double surname shows that the 2013 name law reform was not in line with the societal reality of couples who are attached to the identity created by their maiden name, while still wanting to form a family unit.

As for the impact of this legislation on our clients, the issue of the name is not within the jurisdiction of the divorce court or protective measures for the marriage. It is a strictly personal right of the spouses. The question of whether the future ex-spouse wishes to keep their family name sometimes raises psychological issues, but the legal reality is that each person remains free to either revert to their maiden name or keep their married name after separation. This choice is often influenced by the presence of common children. There is, therefore, no room for maneuver on this point.

The pandemic has accelerated the digitization of family justice. What are the advantages and challenges of this transition?

The impact of the pandemic was particularly harsh on family law, with countless people in the midst of acute family crises. Parents in separation or divorce proceedings, in particular, experienced increased vulnerability, both materially and emotionally, with differing consequences for mothers, fathers, and children.

Moving to digital justice in civil procedures allowed urgent cases to be handled and significant delays to be avoided.

The shift to digital justice was stimulated by the pandemic but is part of a broader and more lasting transformation of the judicial system and Swiss society as a whole. To avoid delays and address urgent cases, the Swiss Federal Council authorized remote hearings in civil proceedings (RS 272.81).

However, this is an exceptional regime that has not yet been applied in the canton of Vaud.

In my opinion, "remote justice" is not ideal in the field of family law, where emotions need to be shared and aired. Many agreements can be reached during in-person hearings.

Moreover, in family law, parties need human contact, and "remote justice" could potentially increase conflicts in family law cases.

The Swiss Family Barometer 2024 highlights the financial pressures on families, particularly related to health insurance premiums and care costs. How do these constraints affect family matters and negotiations during separations?

The separation of a couple inevitably leads to the creation of two separate households, which de facto increases the fixed costs for the family, particularly when it comes to securing a new place to live. The rise in health insurance premiums and care costs adds further pressure, sometimes requiring a subsidy request as the family's means may no longer cover all fixed costs with two distinct households.

Current case law reflects societal changes, particularly regarding the resumption of work or the increase in the employment rate of the spouse who reduced their hours or stopped working to care for the children. Furthermore, shared custody is now regularly introduced as a childcare arrangement, allowing both parents to increase their earning capacity, especially to cope with the additional costs brought about by separation.

However, the use of amicable methods allows the parties to jointly consider solutions to mitigate the financial consequences of separation in a consensual and less abrupt manner than a solution imposed by the courts.

What advice would you give to young lawyers wishing to specialize in family law and mediation?

My advice is to quickly choose a firm specializing in family law. Then, it's important to train in the specific fields of mediation and family law. The Swiss Bar Association offers specialized training in mediation and family law, but these require professional experience in these fields. Therefore, it's important to gain practical experience in these areas before pursuing these trainings, and the choice of the law firm is crucial.

The key skills include good listening abilities, empathy, and the capacity to maintain the necessary distance to keep a healthy detachment from the situation at hand.

How do you see family law evolving in Switzerland in the coming years?

Family law will undergo significant changes in the coming years, particularly through the recognition of new family forms. Today, the concept of family is broader, especially when it comes to the situation of same-sex couples.

The introduction of marriage for all, the law on medically assisted reproduction, and issues related to stepchild adoption will lead to legislative changes that take into account new forms of family structures, particularly concerning unmarried parents.

The implementation of the “Cochem procedure” in Valais, the Parental Consensus in the canton of Vaud, and the enactment of the Mediation Law in the canton of Geneva illustrate a growing awareness, both from the judiciary and litigants, of amicable methods in family law proceedings, especially when children are involved.

Regarding the impact of this legislation on our clients, the issue of the name is not under the jurisdiction of the divorce court or protective measures for the marriage. It is a strictly personal right of the spouses. The question of whether the future ex-spouse wishes to keep their family name may sometimes cause psychological issues, but legally, each person remains free to either revert to their maiden name or keep their married name after the separation, often influenced by the presence of common children. There is no room for maneuver on this point.

_{Translated by AI}