Understanding, Principles and Legal Basis for Mediation

What is Mediation?

Mediation is an effort or process to resolve disputes between parties by mutual agreement through a third party as an intermediary (called mediator) that is neutral ( non-intervention ) and impartial ( impartial ) for the implementation of dialogue between parties with an atmosphere of openness, honesty, and exchange opinions to reach consensus.

The term mediation comes from Latin, which is mediare which means to be in the middle. The word mediation is also found in English, namely mediation, which means the settlement of disputes involving third parties as mediators or mediating dispute resolution, the intermediary of which is called the mediator or mediator.

Whereas in the Big Indonesian Dictionary (1998), the term mediation has the meaning of the process of involving a third party in settling a dispute as an advisor.

Here are some meanings of mediation from book sources and references:

  • According to Christopher W. Moore, mediation is the intervention of a dispute or negotiation by an acceptable, impartial and neutral third party that does not have the authority to make decisions in assisting the disputing parties in an effort to reach agreement voluntarily in resolving disputed problems ( Sutiyoso, 2008: 57).
  • According to Folberg & Taylor, mediation is a process whereby the parties, with the help of a person or several people, systematically resolve disputed problems to find alternatives and reach a solution that can accommodate their needs (Emerson, 2001: 68).
  • According to Moore, mediation is the intervention of a dispute or negotiation by an acceptable, impartial and neutral third party that does not have the authority to make decisions in assisting the disputing parties in an effort to reach agreement voluntarily in resolving disputed problems (Emerson, 2001 : 68).
  • According to Umam (2010: 10), mediation is a process of negotiating solutions to problems, where the parties who are impartial work together with the disputing parties to seek mutual agreement. The outsider is called the mediator, who is not authorized to settle disputes, but only helps the parties to solve the problems authorized by him.
  • In Rule 1 of the Supreme Court No. 1 of 2008 in article 1 of paragraph 7, mediation is a means of resolving disputes through the process of negotiating the parties’ agreement with the assistance of mediators.

Characteristics and Elements of Mediation

According to Musahadi (2007: 84), mediation has the following characteristics and characteristics:

  1. There is a neutral and impartial third party, meaning that it is not involved or related to the problem in question. Neutral and impartial in the sense of being impartial and unbiased.
  2. In an individual case, the conflicting party should choose the mediator, but the mediator can also offer himself, but the warring party must agree to the offer. Third parties must be accepted by both parties.
  3. The settlement is made by the disputing party, and must be obtained without coercion by either party.
  4. The task of the mediator is mainly to keep the negotiation process going and going, helping to clarify what the real problems and interests of the parties are. In other words the role of the mediator is to control the process, while the role of the warring parties is to control the content of the negotiations.

Meanwhile, according to Margono (2000: 59), dispute resolution through mediation has the following characteristics or elements:

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  1. Mediation is the process of resolving disputes outside the court based on negotiations.
  2. The mediator is involved and accepted by the parties in dispute.
  3. The mediator is on duty to assist the disputing parties to find a solution.
  4. Mediators are passive and act only as facilitators and tongue-in-cheekers of the disputing parties, so they are not involved in drafting and formulating a draft plan or proposal.
  5. Mediators do not have the authority to make decisions during the consultation.
  6. The purpose of mediation is to reach or produce an agreement that is acceptable to the parties to the dispute to end the dispute.

Principles of Mediation

According to Ruth Carlton (Hoynes et al, 2004: 16), there are five basic principles of mediation, known as the five basic philosophy of mediation, namely: the principle of confidentiality ( confidentiality ), the principle of voluntary ( volunteer ), the principle of empowerment ( empowermen t), the principle of neutrality ( neutrality ), and the principle of a unique solution .

a. The principle of confidentiality

The confidentiality herein is that anything that happens in a meeting held by the mediator and the parties involved should not be made public or the press by either party. Likewise, the mediator must keep the confidentiality of the content of the mediation, and should destroy the entire document at the end of the session. Each of the disputing parties is expected to respect each other’s privacy issues and interests.

b. Voluntary Principles ( volunteer )

Each of the disputing parties comes to mediation on their own free will and without the pressure and pressure of others or outsiders. This principle of volunteerism is built on the basis that people will want to work together to find a way out of their disagreements, when they come to a bar of their choice.

c. Empowerment Principles ( empowerment )

This principle is based on the assumption that people who want to come to mediation actually have the ability to negotiate their own problems and can reach the agreement they want. Their ability in this matter must be recognized and valued and therefore, any solutions or solutions must not be imposed on the outside. Dispute resolution must arise from the empowerment of each party, because it will better enable the parties to accept the solution.

d. Neutrality principles ( neutrality )

In mediation, the role of a mediator only facilitates the process, and the contents remain the property of the parties to the dispute. The mediator is only authorized to control the process of mediation. In mediation, a mediator does not act like a judge or jury who decides the wrong or right of one party or supports his opinion and resolution to both parties.

e. Prinsp unique solution ( a unique solution )

That the solution resulting from the mediation process does not have to be in accordance with legal standards, but can be generated from the creativity process. Therefore, the results of mediation will likely follow the wishes of both parties, which are closely related to the concept of empowering each party.

Legal Basis for Mediation

The legal basis for implementing mediation in Indonesia is one of the ADR ( Administrative Alternative Dispute Resolution ) systems , as follows:

  1. Pancasila and the 1945 Constitution, are implied in its philosophy that the principle of dispute resolution is a deliberation to reach consensus.
  2. Law No. 4 of 2004 on the Principles of the Judiciary, the clarification of Article 3 states: “Settlement of cases outside court, on the basis of peace or through referees is still allowed”.
  3. Law Number. 1 of 1974 in conjunction with Article 39, Law No. 7 of 1989 jo. Law number 3 of 2006 jo. Law number 50 of 2009 concerning Religious Courts Articles 65 and 82, PP Number. 9 of 1975 Article 31 and KHI Article 115, 131 paragraph (2), 143 paragraph (1) and (2), and 144.
  4. Supreme Court Circular Letter (SEMA) No. 1 of 2002 concerning Empowerment of the First-Level Court to Implement a Peace Institution (Ex Article 130 HIR / 154 RBg).
  5. Supreme Court Regulation (PERMA) Number. 02 of 2003 concerning Mediation Procedures in the Court.
  6. Supreme Court Regulation (PERMA) Number. 01 of 2008 concerning Mediation Procedures in the Court.
  7. Mediation or APS outside the court is regulated in Article 6 of Law Number. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution.

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