Mediation and Arbitration

The definition of Mediation according to the Big Indonesian Dictionary is the process of involving a third party in resolving a dispute as an advisor. Meanwhile, according to the Supreme Court Regulation regarding the definition of Mediation, namely a method of dispute resolution through a negotiation process to obtain an agreement between the Parties with the assistance of a Mediator.

So it can be concluded that Mediation is actually an alternative dispute resolution that aims at efficiency and effectiveness both in terms of time, effort, and cost that avoids the suing process in court as it is known to be very taxing, costly, and also takes a long and tedious time. the implementation process.

In a business or business world where a principle that states that Time is Money is very well known, of course no entrepreneur or businessman wants a problem-solving process that takes a long time or is protracted because this will have an impact on inefficiency or even have the potential to hinder development. the business he is running.

Likewise, when viewed from the reputation side, where every developing company always strives to maintain a good name or reputation of the business or business that is being run. Thus the matter of dispute resolution or cases being faced by an entrepreneur is an important part that must be resolved very carefully because it involves the reputation or good name of the business concerned and dispute resolution through closed Mediation will certainly bring significant benefits to maintain reputation. businessmen who are in dispute, it is different with settlement through the General Court process where the general public, especially journalists, will be able to easily find out and publish ongoing disputes or cases due to the nature of the Court which MUST BE OPEN TO THE PUBLIC so that it has the potential to have an adverse impact on reputation or the good name of the businessman in dispute or his business.

In the world of international business, the resolution of problems or disputes through Mediation is a common thing and is even among the alternatives most preferred by the businessmen in dispute. Apart from a series of advantages previously described by the author, another factor that makes the Mediation route an option for the disputing parties is the skills and expertise possessed by the Mediators who act as mediators where the members of the Mediator not only control the field of business that is in dispute. but also a practitioner with experience in the business field that is being sought for a solution.

The use of the Mediation method as a settlement of disputes or business cases is actually in line with the ideology of the Indonesian nation as stated in the Pancasila, where the principle of dispute resolution through deliberation for consensus is always prioritized in order to maintain national harmony and unity. Because it is very ironic if business disputes are one of the factors causing disintegration or the breakdown of national unity.

Regulations regarding Mediation as an alternative to dispute resolution themselves are not regulated in the Law because of its nature which is a means to find solutions or solutions to a problem by analyzing existing legal facts so that justice can be found that can be used as a guide, therefore in essence mediation constitutes part of the Judiciary as stipulated in the Law on Judicial Powers, so that the regulation of Mediation itself is regulated in a Supreme Court Regulation as the pinnacle of Judicial Power in Indonesia.

The author tries to answer several questions that generally arise about solving problems through Mediation as an alternative to dispute resolution, especially outside the court channels, such as:

  1. Does dispute resolution through Mediation have the same legal force when compared to the court's lawsuit (litigation)? Because if they do not have the same legal force, of course business actors will tend to choose court routes that can provide certainty in the form of a judge's decision.

Before answering the questions above, it would be better if the reader first understands the basic concept of the dispute, where in essence a business dispute is a civil dispute arising from an agreement made by the disputing parties, in this case the business actors. So that in dispute resolution, either through court or out of court mediation, actually the initiative and goodwill of the disputing parties is the only best way to reach the settlement itself.

Furthermore, it can be understood when the disputing parties have agreed to seek a solution, then in essence the problem has been resolved, either through court channels or out of court mediation. The parties who have agreed to mediate outside the court will make a peace deed that is agreed upon and obligatory to be implemented. So it can be understood that the peace deed has the same power as the judge's decision in court.

  1. How do you choose the correct Mediator so that the disputing parties can be more careful in reaching a resolution of the problem?

The correct Mediator is more defined by the Author as an appropriate Mediator, that is, those who already have sufficient experience and skills in the field of business being challenged, in addition, this odd number of Mediators (usually consisting of 3 or 5 people) must also consist of at least -at least a legal expert and has a certificate as determined by PERMA.

  1. How so that the results of the mediation can have legal executorial power?

After the results of the peace agreement are formulated and drawn up and signed by the parties in the case of a notarized case, then the results of the mediation are registered with the Court which has the authority in its jurisdiction to be further processed according to the implementation stages specified in the Supreme Court regulations.

  1. Does the mediation settlement process only apply to certain business cases or what are the limitations of cases that can be resolved through mediation? Where can the mediation process take place? Should it be in a court environment or can it be done freely?

There are still many questions related to Mediation material and of course the answers cannot be explained in full on this site, but for legal service users who still need answers and further and broader information regarding Mediation, readers can contact and or visit our office .


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