Penyelesaian sengketa melalui lembaga mediasi di pengadilan

Chandra, Max (2004) Penyelesaian sengketa melalui lembaga mediasi di pengadilan. Masters thesis, Universitas Pelita Harapan.

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Abstract

The era of mediation through a court will be started by the issuance of mediation rule as evident from Regulation of the Supreme Court of the Republic of Indonesia Number 2 Year 2003 concerning Mediation Procedure Through a Court enacting the disputing parties to firstly settle their dispute(s) by the way of mediation throuhg a court. This rule is a supplement to the "Het Herziene Indonesich ReglementfHIR ) / Reglemeni Tot Regeling Van Het Rechtwezen /n De Gewesten Buiten Java en Madura(RBG) ", especially for the articles providing the reconciliation among parties through a court as stipulated in Article 130 of HIR/Articles 154 of RBG. If the reconciliation among parties through a court has been reached, either appeal or appeaJ to the Supreme Court(kasasi) can be avoided, therefor decision of the court may be exercised immediatly. Both regulations mentioned above provide the reconciliation procedures as mentioned in Articles 1851 of the Indonesian Civil Code (KUHPerdata) in which the disputing parties have to propose to the court to reconcile them. In addition to the reconciliation through a court, we also recognize the Arbitration Board and the Alternative Dispute Resolution as a place to settle the dispute(s) among parties and to reconciled the disputing parties. As we know that the reconciliation instirution has been recognized within our KUHPerdata and HIR, but in reality the institution could not play its role as it should be. Parties involved in any legal dispute could not expect immediate resolution from the institution, since article 130 of HIR stated that judge has no obligation to reconcile parties involved Additionally, lawyers have specific interest in refusing reconciliation proposed by judge, since the lawyer has rights to refuse reconciliation, and to begin legal suit process. As a result, article 130 of HIR could not applied, or most often avoided by lawyers. Based pn facts above, the Supreme Court issued Circulation Letter of the Supreme Court (SEMA) Number 2 of 2002, stating that article 130 of HIR should be empowered in order to establish reconciliation through the court. But such effbrt also failed, since the SEMA is not a regulation, but only a kind of the Supreme Court call to enforce reconciliation through the court, while judge has no obligation to reconcile parties involved in concerning legal dispute, due to lack of technical regulations. Then, in order to empower reconciliation institution through the court, the Supreme Court issued the Supreme Court Regulation Number 2 of 2003 on September 11, 2003, which is known as regulation on mediation through the court. Today and in the future, mediation could be used by mediator judge in any case brought before the court. Therefore, main problems to be discussed in this thesis are : What are differences among Arbitration Board, Alternative Dispute Resolution, and Mediation? Is Mediation able to settle any case brought before the court ? •Does resolution through Mediation bind parties involved ? In this research the author use library research and normative legal approach, as well as empirical research approach by conducting interview with legal institution concerning issuance of the Supreme Court Regulation Number 2 of 2003 on Mediation. Summary of the thesis are : • The main difference between arbitration and alternative dispute resolution lay on the arbitration decision, which final and binding in nature, while in alternative dispute resolution, the decision is not final and bind parties involved • Mediation through the court settle a case if the mediation resulted in agreement between parties. • Dispute resolution through mediation has legal binding power since the date of reconciliation agreement Such agreement between parties enable them to develop reconciliation agreement among themselves

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