Resolving Medical Disputes: Lessons from U.S. Arbitration for Indonesia’s Legal Framework

Disputes do arise from mutual relationship and there are ways of resolving them traditionally and by legal means. Litigation is the principal means of legal means but over time there developed means of alternative resolution of disputes although one is not aware that there had been traditional means of dispute settlement from time immemorial. One of the ways disputes arise is through interface with medical personnel known as medical disputes. Due to the nature and scope of medical disputes, it has become increasingly clear that the typical means of resolving disputes will no longer suffice, the bare minimum has become unacceptable. This has caused many to look for a better means of solving this problem, hence the rise in the use of mediation as a medium for resolving medical disputes. This article discusses mediation as a process of voluntarily submitting a dispute to a neutral third party, who facilitates communication and negotiations between the disputing parties. This article takes into cognizance the fact that because of its confidential and non-adversarial nature, mediation suits the resolution of medical disputes very well, discussing how and when it may be applied, especially when compared with the other forms of dispute resolution methods. It goes further to show that mediation not only serves a purpose for the resolution of private medical disputes – disputes arising between health care workers and patients, it also serves well in the resolution of public medical disputes – medical trade disputes. The article finds that Mediation templates are most suitable for medical disputes; that the disputes could be private or public and that in comparative terms Mediation is mostly deployed to resolve medical disputes in overseas countries. The article concludes that Mediation is more effective in resolving medical disputes if its processes are properly harnessed and applied.

Medical disputes arising from conflicts between patients and doctors/dentists can be addressed through litigation or non-litigation channels. Law Number 17 of 2023 concerning health mandates that all medical disputes must first be resolved through Alternative Dispute Resolution (ADR) outside of court. The aim of this paper is to analyze ADR as a method of resolving medical disputes in Indonesia and to examine the legality and potential of arbitration as a dispute resolution method under Indonesian law. The benefits of this study include providing a juridical understanding of medical dispute resolution according to Indonesia’s positive law and contributing to the field of health law. The study addresses the ambiguity and conflict of norms related to medical dispute resolution by employing normative legal research with a statute approach, supported by descriptive and evaluative analysis. The results indicate that, according to Article 310 of Law Number 17 of 2023, medical disputes must be resolved through non-litigation channels. Among the available ADR methods, arbitration offers advantages over mediation due to its binding final decision, making it more efficient for both parties. The legal foundation for arbitration in medical dispute resolution is outlined in Law Number 30 of 1999 concerning arbitration and alternative dispute resolution. Consequently, arbitration presents a new paradigm for resolving medical disputes in accordance with Indonesian positive law.

This research aims to analyze the role of mediation as a method of medical dispute resolution in Indonesia, which is seen as more effective, fair, and cost-effective than the litigation process. This research uses a normative legal method with a descriptive-analytical approach to identify legal principles, doctrines, and regulations related to medical dispute resolution. The main focus is dispute resolution through mediation in medical malpractice cases, which involves civil, criminal, and restorative justice aspects. The novelty of this research lies in the in-depth exploration of penal mediation as an approach in resolving criminal disputes related to medical malpractice, even though it does not yet have a strong legal foundation in the Indonesian criminal justice system. The results show that mediation, both in the civil and criminal realms, can provide a more humane and satisfying solution for all parties involved. However, the implementation of penal mediation still faces legal and practical challenges, especially in providing protection of patients' rights and ensuring justice for medical personnel.In conclusion, mediation has great potential in resolving medical disputes in Indonesia, but more specific regulations are needed to optimize its implementation, especially in criminal cases. As such, this study makes an important contribution to the development of a better medical dispute resolution mechanism in Indonesia.

Medical Malpractice Reform Measures and Their Effects

Medical disputes in Indonesia often face challenges such as lengthy litigation processes, high costs, and low satisfaction among the parties involved. In this context, Alternative Dispute Resolution (ADR), particularly mediation and arbitration, offers a more efficient solution. Mediation has been regulated under Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution as well as Supreme Court Regulation (Perma) No. 1 of 2016. However, arbitration mechanisms still lack a specific legal framework, even though Law No. 17 of 2023 on Health emphasizes the importance of swift and fair dispute resolution in healthcare services. Unlike litigation, arbitration allows for final, expedited, and binding resolutions. Countries such as the United States, the United Kingdom, and Taiwan have successfully implemented arbitration in medical disputes. Taiwan, for instance, has specific regulations that facilitate medical arbitration processes, providing legal certainty for patients and healthcare providers. Indonesia can learn from these international experiences. By clarifying arbitration regulations in the healthcare sector, the government can strengthen a dispute resolution system that is responsive to societal needs. This enhancement can be achieved through the training of professional arbitrators and promoting the use of ADR, ensuring that medical disputes are resolved more fairly, quickly, and cost-effectively.

<p>本文首先介紹醫療事故預防及爭議處理法（醫預法）的背景、內容和重點，並比較了醫預法實施前後的醫療爭議訴訟外解決制度--和解與調解。醫預法採取「機構內關懷」與「機構外調解」的雙軌模式，並強調「調解先行」的原則，以調解取代訴訟的內涵，以促進醫病雙方的和解。由於醫預法的實施將對醫療爭議的處理帶來重大的改變，臨床醫事人員面對調解時應具備的專業素養，包括法律專業的支持、關懷調解的支持、適當的態度和溝通技巧等，這部分需要透過醫學教育的深耕始能達成。</p> <p> </p><p>This aritcle introduces the background, content, and key aspects of the Medical Accident Prevention and Dispute Resolution Act (the Act), comparing alternative dispute resolution (ADR), such as settlememt and mediation, for medical disputes before and after the implementation of the Act. The Act adopts a “dual-method” approach of “internal institutional care” and “external institutional mediation,” emphasizing mediation over litigations and fostering settlement between healthcare providers and patients. The implementation of the Act will bring significant changes to the handling of medical disputes, necessitating clinical healthcare personnel to possess professional mediation-related competencies, including legal expertise, care and mediation abilities, and appropriate attitude and communication skills. These competencies can be developed through medical education.</p> <p> </p>

The speedy progress of trade in Global Health Services is limited by legal barrier. Advances in technology andcross-border movement of people and health services form legal ambiguities and uncertainties for businessesand consumers involved in transnational medical malpractice disputes. This requires for a uniform meansof redress which is more flexible and predictable as compared to litigation in a court room. Therefore, thevoluntary, flexible and legally binding nature of arbitration agreements across jurisdictions make this formof dispute resolution efficient and adaptive to changes in the health services industry. With careful making ofan approach that accounts for arbitration cost, reasonable recovery amount and complementary mechanismssuch as no-fault compensation, international arbitration of medical malpractice disputes will change thelegal risks borne by businesses and consumers more fairly and efficiently.This paper argue that most medical disputes are better resolved by alternative dispute resolution mechanismswhich will contribute in improving patient safety by encouraging candid and comprehensive reporting ofrisks. It also argues that medical disputes and patient safety needs to be viewed through a new lens, namelypatient autonomy. It discusses the scope of India flourishing in the field of Medical Tourism and also thechallenges faced by the foreign patients and the scope of Arbitration in amicably resolving the medicaldisputes in a cost effective and in a swift manner.

WORKPLACE VIOLENCE IN HEALTH CARE: A CONTINUOUS GLOBAL PROBLEM AND ITS CHARACTERISTICS IN CHINA Workplace violence is a persistent problem in health care worldwide. The victims are usually nurses and workers in the emergency department.[12345678] The academic debate, as it develops overtime, would allow us to gain an integral insight about this problem. The author searched the related research and debate articles in English in PubMed (www.pubmed.com) dated from 1990 to 2016 [Figure 1]. In total, 1899 items with the keywords of "workplace violence," 600 items with "workplace violence healthcare," 786 items with "workplace violence nursing," and 279 items with "workplace violence emergency" (there is some overlap between these four groups) have been published.Figure 1: Workplace violence papers searched by keywords in PubMed from 1990 to 2016. Papers included in http://www.pubmed.com. Here shows the account of items from 1990 to 2016 when searched with "workplace violence" (blue), "workplace violence healthcare" (red), "workplace violence nursing" (green), and "workplace violence emergency" (violet), respectively.Workplace violence in health care has become a prominent social problem in China in the recent years. A survey conducted by the China Hospital Association in 2012 showed that 96% of the hospitals investigated had verbal violence and as much as 60% had experienced physical violence.[9] Another survey in 2012 showed that more than 50% of the 2464 respondents in 12 hospitals from 2 provinces had experienced workplace violence and the rate of physical assault was 11%.[10] According to a survey conducted in 2014, 12.6% of 840 respondents admitted being physically attacked at their workplace in that past 12 months.[11] Direct care providers, including physicians and nurses, are more prone to suffer from physical assaults.[11] However, violence, including fatal physical assault, affects nearly all Chinese health-care professionals.[121314] In addition, "medical mobs"–a group of people gathered at health care facilities threatening medical staff and create chaos for large compensation instead of the settlement of medical disputes–disturb medical working environment, although more often than not, they do not resort to violence.[1516] Statistical analysis by the Ministry of Health showed that more than 17,000 violent affairs had occurred in 2010.[17] In 2015, the Supreme People's Procuratorate summarized features of violence at hospitals as follows: occur frequently and suddenly with serious consequences, have a wide impact on the public, need urgent attention and handling, cause serious damage, and pose continuous potential dangers.[18] Thus, being employed as a hospital staff, especially as a direct care provider, is now considered a dangerous job in China. NEGATIVE EFFECTS OF WORKPLACE VIOLENCE ON THE STAFF AND PATIENT OUTCOMES Frequent instances of workplace violence have direct and indirect negative consequences on both the staff and patients, including compromised patient care.[19] Violence and inadequate managerial care after violent incidents may reduce nurses' proficiency, which could have negative implications for patient care.[20] Physical violence against care providers has been associated with patient falls, medication errors, and late administration of medications.[2021] Numerous studies have documented experiences of violent incidents resulting in severe psychological distress, increased work stress, and reduced work efficiency.[2223242526] Violence in the health sector is also associated with job dissatisfaction and turnover intention among care professionals.[2728] Both bullying and physical violence have led to increased turnover intention. Shortage of physicians and long waiting time for visits and treatment are challenges faced by China's health care, and these are also some of the reasons for workplace violence.[17] Chinese medical staff faces heavy workload, providing service to one-fourth of the world's population. An investigation by the Chinese Medical Doctor Association in 2009 showed that more than 60% of the registered physicians were not satisfied with the working environment. The Ministry of Health statistics in 2008 showed that 1 million people had acquired physicians' license in the past 6 years; however, 40% of them did not register.[17] If this situation continues, Chinese patients will have to face a further shortage of physicians.[29] Moreover, the practice of defensive medicine among physicians in Chinese hospitals has been reported for years. This may also have negative implication for doctor–patient relationship and subsequently contribute to the incidences of violence against health-care professionals. The author conducted a survey in 13 hospitals of Beijing from July 2007 to March 2008 that showed most of the respondents' (83.0%, n = 811) practiced defensive behavior, and defensive practices were significantly associated with their experience of complaints (P = 0.0318) and medical negligence claims (P < 0.0001). Notably, even in emergency cases, a surprisingly high percentage of the physicians (43.3%, n = 811) had a negative attitude toward first aid when the patient was not accompanied by any family member; they would not implement invasive treatment without the consent in writing from the patient's families, even if the patient needs the treatment as prompt first aid. Instead, they chose to wait for the signed consent or followed the manager's decision. Defensive behavior is becoming more widespread due to the frequency of violent incidents. A written informed consent by the patient or his family for any operation, special examination, or special treatment is required by Tort Law of China, making the situation even worse. When the author gave lectures during Beijing resident training on courses of law and regulations from 2015 to 2016, a rough statistical analysis of the emergency question showed that less than 20 of the 1200 residents who attended the courses showed no hesitation to provide prompt invasive treatment to the patients on basis of the patients' interests rather than a written consent form. Ultimately, it is the patients who end up paying for the violence. GOVERNMENT EFFORTS TO PREVENT WORKPLACE VIOLENCE AND THE RESULTING OUTCOMES The Chinese government has been exploring various ways to prevent workplace violence in health care, especially in the recent years. For example, the Ministry of Health and the Ministry of Public Security had called for the protection of health-care professionals from suffering violence in a joint notice as a response to the fatal violence at the First Affiliated Hospital of Harbin Medical University.[30] In addition, the Supreme Court, on April 24, 2014, announced the decision to work together with four-related departments to penalize those responsible for workplace violence in hospitals. The notice listed six kinds of violent behaviors that hurt doctors or disturb/disrupt the daily operation of hospitals, including carrying dangerous materials or threatening medical staff. Despite the presence of security officers in some hospitals for assistance, the situation has continued to deteriorate in the recent times. Wei Xiao, a spokesperson of the Supreme People's Procuratorate, stated on June 24, 2015 that more than 10 cases of violence against doctors were reported by the media within 20 days in China, only 2 days before the fifth Chinese Doctor's Day.[31] Under the Amendment of Criminal Law in effect from October 1, 2015, those who organize or participate in medical mobs will face criminal penalties if their violent behavior disturbs work order seriously and causes heavy losses. However, preventive measures for workplace violence have not proved to be entirely effective. Bullying, physical assault, and serious personality insult still occur occasionally.[13151632] Recently, Li Baohua, a pediatrician of Shandong Laiwu Steel Group Hospital, was stabbed 27 times and killed by a patient's family member causing serious injuries.[33] This heinous violent behavior happened exactly 1 year after the Amendment of Criminal Law was in effect. A female physician was also stabbed for no reason,[14] only a few days after, "the Opinion on Performing the Procuratorial Functions Fully to Provide a Strong Judicial Support for Promoting healthy China" was published on September 29, 2016.[34] In this opinion, the Supreme People's Procuratorate stresses that they will intensify the crackdown on criminal behavior against medical staff to ensure normal medical order and safety of medical personnel. It appears that the government's efforts were not very effective. LEGAL AND ETHICAL REASONS BEHIND FAILURE OF PREVENTIVE MEASURES Even criminal penalty has been unable to prevent violence in health care. Insufficient investment in the health system, lack of communication between health professionals and patients, negative media reports, and unrealistic patient expectations from treatments may be the reasons for this. However, the government may not have realized that the factors described below are important reasons that directly cause and worsen workplace violence and promote medical mobs as well. Unfair and time-consuming litigation process of medical negligence claims Many people prefer not making claims due to the fear of failure and prolonged course for arbitration of disputes; instead, they sort to medical mobs and behaviors alike. If people suffer an injury during treatment under a medical service, they can allege medical negligence. However, litigation procedure for medical negligence is a time-consuming process that usually lasts several years, especially for complicated disputes. As a part of structured retrospective reviews, Li et al. analyzed 1086 medical dispute lawsuits from 1998 to 2011 from a nationwide database in China.[35] Results suggested that the average time span between the occurrence of disputes and issue decision was 3 years;[35] nearly 76% of the claims in negligence received compensation under civil judgment (640 of 841) although fault liability was not confirmed in 7% of these claims (43 of 640).[35] In general, the judges cannot make a decision by themselves about the professional problems of medical disputes, and they usually arrive at a decision based on the conclusions issued by a judicial authentication of the claims. Thus, the patients and their family have to wait for a long time for the compensation through litigation. Such legal proceedings are not established under patient-centered ethical considerations. Apparently, patients in urgent need of subsequent treatment cannot benefit from compensations through litigations. Moreover, patients who fail in the court do not get compensation and end up paying the litigation costs. "Successful" resolution of negligence claims by medical mobs Research shows that only about 5.4–25.3% of medical disputes have been solved by litigation.[35363738] Many of the "successful" negligence claims are the result of medical mobs. This factor not only contributes to workplace violence but also to the origin of medical mobs. There are several reasons for the popularity of medical mobs. First, the staff, including some managers in China's hospitals, has always adopted an evasive and conciliatory attitude and preferred to resolute disputes with money when they encounter disputes with patients. Such an attitude invited medical mobs, which had been proven quite effective in medical disputes–amount of compensation or indemnity depends on the extent of trouble caused by the mobs rather than the extent of the medical damage.[39] This has gradually led to the proliferation of medical mobs. From the year 2000 to 2012, at least 150 medical violence cases that caused more than 30 deaths have been reported by the media. However, it is regrettable that most of the hospitals chose to terminate the disputes monetarily.[35] The staff prioritizes quick resolution of disputes, and consequently, they often pay a substantial amount of money for little or even no negligence. Second, through communication with physicians and managers, the author found that some hospitals have even formulated some unfair rules to avoid disputes, such as "a doctor or nurse will be punished for a complaint or dispute, no matter whether he or she is at fault." Such unjustified rules ignore feelings of medical staff. When patients and their families realize they can obtain more money quickly by threats and violence, litigation became less popular. The tolerance and forgiveness for patients and their families worsen the situation Palliative attitudes of the Supreme People's Procuratorate and Public Security Forces and misleading media reports worsen the situation. On June 24, 2015, the Supreme People's Procuratorate stated that they would treat medical mobs differently–"Procuratorate at all levels will try to promote reconciliation when the medical mobs are patients or their relatives; on the contrary, they will attack professional mobs." The Supreme People's Procuratorate's statement shows different attitudes to violence from medical mobs and patients' families. That difference and the weakness of security personnel are mistakenly attributed to the government's tolerance of violence from patients and their families. A survey showed that only 28% of public security personnel provided active help to resolve violent incidents resulting from medical disputes[35] despite a cross-sectional survey showed 22.6% and 62.3% of the perpetrators of physical assaults were patients and their relatives, respectively.[11] In addition, forgiveness and tolerance of the patients and their family's violent behavior showed in the media reports are looked on as an encouragement of the future violence. Media reports on violence also mislead people–these reports seldom discuss the truth behind the violence and the potential legal liability of such behaviors, which directly worsen the medical working environment. SUGGESTIONS FOR PREVENTION OF VIOLENCE AND MEDICAL MOBS It is important for the Chinese government to evaluate and implement alternative strategies to address workplace violence. Stringent guidelines may play a significant role in preventing workplace violence and fatal assaults.[40414243] Active postviolence management for relieve the pressure on the staff is as important. However, continuing violence has highlighted that the policies and actions taken by the government cannot entirely resolve the problem. Following are a few suggestions for resolving this issue: A law- and evidence-based process for medical disputes should be established It is usually the patients or their families who are responsible for most physical assaults and fatal violence incidents.[11] Although the aim of medical mobs is to create chaos at workplaces and exert pressure and they seldom cause fatal harm to the staff, the tolerance of violence stemming from patients is a barrier to preventing workplace violence. The medical staff deserves protection by the law as citizens. The Supreme People's Procuratorate's statement on treating mob violence differently is a breach of the principles of law. The Procuratorate has a criminal law in place for violent behavior, and treating physical assaults and fatal violence in hospitals differently is, thus, a breach of criminal law. To prevent workplace violence effectively, the government should change this attitude. The Procuratorate and courts need to treat all physicians, patients, and medical mobs as citizens, and address violence and mob incidents under a common principle of law. In addition, the media should report impartially and encourage people to resolve disputes through negotiation and legally prescribed ways. Moreover, tracking reports are needed to inform people of the investigated results and the subsequent penalty for the violence. Alternative dispute resolutions should be introduced in medical disputes Besides building a law- and evidence-based dispute resolution process and environment, the government should develop multiple alternative dispute resolutions (ADRs), such as arbitration and mediation, which have been confirmed to be successful in settling medical disputes in other countries.[4445] Meditation is the most common method of ADR, and it has been confirmed to be the most effective method when supported by organizational commitment and conducted by independent, experienced, and qualified mediators in workplace conflict[46] and has successfully addressed a part of the medical disputes in China in the recent years.[47] Arbitration, which has more advantages than mediation, however, is commonly applied only in economic disputes in China. Arbitration can address a dispute quickly and make decisions through a team of professional experts and lawyers. Choice of arbitration authority can help in reaching an agreement between the parties easily. Moreover, the decision is legally enforceable. Thus, arbitration can resolve medical disputes effectively and efficiently. Arbitration is a potentially feasible pathway for medical disputes resolution. A survey conducted in 2008 showed that both medical staff (83%) and patients (67.69%) considered that a fair and reasonable decision of medical disputes should be made by a group, which comprised multi-field professionals, especially including both medical professionals and lawyers (74.61% of doctors and 55.26% of patients).[45] In addition, the majority of doctors and patients (57.6%, 51.3%) chose to resolve the dispute through a variety of ways; nearly 28.40% of doctors and 15.86% of patients chose arbitration to solve the disputes, even when arbitration was not a very popular option for the people.[45] Face high-risk in medical work with active managements and attitudes Healthcare worksites should develop specific plans to minimize and prevent workplace violence. Hospital managers and front-line health-care workers should actively participate in implementing such programs. To eradicate medical mobs, the medical staff must change their attitude and principles during a dispute resolution process, which will also benefit the establishment of law- and evidence-based process to solve disputes. Violence, especially by medical mobs, will reduce and finally stop when they can obtain nothing except punishment. In addition, the medical staff should be encouraged to discuss high-risk medical treatment with the patients. They should explain the potential risks to the patients and also share undesirable prognosis and outcomes with them. Even when things do not go well as expected, hospital and staff should tell the truth. Most patients or relatives often simply want the truth and an explanation. The staff should not be afraid of sharing their failure with the patients and the public. The staff should not expect patients to face the risk of medicine and the possible adverse results when they would not want to face and accept the risks. The patients and the public can understand the position of the medical staff only if they understand the limitations of medicine. Media should play a positive role in the patient–physician relationship Media should undertake their due social responsibility. Fundamentally, three tasks are imperative for the media to carry out. First, workplace violence incidents should be reported objectively, with the background of medical technology and legal provisions, thus improving the medical knowledge of law among the masses. Second, subsequent processes of the violent incidents, especially the legal consequences of medical violence and the court verdict, should be reported promptly, thus letting people know the legal responsibilities and consequences of violent behavior against health-care professionals. Third, promoting the popularization of medical science among the public through self-media, such as microblogging platforms and messaging resources, should be encouraged; however, information about the deficiency and limitation of the existing clinical diagnoses and treatment technologies should be predominantly provided. Thus, the patients and their family can gradually realize the truth that what the doctors can do for treating human diseases is limited. Conclusively, workplace violence in health care has had a negative influence on patient safety and progress of health care in China. The government needs to explore strategies and plans for effective prevention of violence and medical mobs in health care. The government and hospitals should realize the underlying reasons behind the violence and find ways to address them. Most importantly, the government should establish a law- and evidence-based dispute resolution process and environment and develop effective ADRs, which include introducing arbitration into medical disputes to provide fairness and justice to both medical staff and patients. The patients and their families should be provided opportunities to understand the limitations of medicine. The patients, public, and government will be the ultimate beneficiaries of a safe health-care environment. Financial support and sponsorship Nil. Conflicts of interest There are no conflicts of interest.

This article aims to analyze the non-litigation paradigm in resolving medical disputes between doctors and patients based on the applicable laws and regulations in Indonesia, along with its implications for improving the quality of health services. This research approach is with a normative juridical method with a statute approach and a conceptual approach. The results of the study revealed that the doctor's relationship that started from a paternalistic relationship has shifted to a partnership. This is evidenced by the regulation of therapeutic transactions and informed consent in every health service provided. Health services, which according to Law No. 17 of 2023 concerning Health are in the form of health efforts (inspanning verbintenis), allow the risk of doctor-patient medical disputes. This law is also the basis for resolving medical disputes between doctors and patients. The law in article 310 stipulates that the resolution of medical disputes first through alternative dispute resolution outside the court (non-litigation). The paradigm of resolving medical disputes through non-litigation can make the doctor-patient relationship more qualitative, because of the win-win solution principle used. A good doctor-patient relationship will also have a good impact on improving the quality of health services provided. Doctors and patients are in their best position as providers and recipients of health services because the good name of doctors and patients is maintained and medical disputes can be resolved with the principle of kinship, without having to waste a lot of money, time and energy.Keywords: Medical Disputes, Non-Litigation, Doctor-Patient

Bali, as a province with strong roots in local cultural traditions and significant economic importance for Indonesia, is striving to balance modernity and tradition, economics, especially mass tourism, and cultural identity. This is why Universitas Warmadewa, one of the largest Balinese universities, chooses the theme ‘Local Wisdom and Business Law’ for its international conferences each year.As a non-Indonesian legal scholar, this theme presents two challenges for me. Firstly, I am not an expert in tourism economics and can only approach the topic from a traditional market law perspective, theoretically. Secondly, the terms used in Indonesian legal discussions may seem vague and unclear from a German perspective, as the legal discussion in Indonesia integrates traditional legal phenomena pragmatically into the applicable legal system. This may also be historically conditioned because since independence Indonesia has to handle a legal pluralism in law, which also finds its cause in the legacy of the colonial era.When speaking on the legal perspective of ‘local wisdom’, several questions are unclear to me:What exactly is local wisdom and how can it be defined?Where does it fit into the Indonesian legal system?What role can local wisdom play in contemporary law?Local wisdom may be understood as part of traditional customary law or Adat, at least in terms of its influence on legal issues, as the conference theme suggests. The terminology around ‘customary law’, ‘Adat’, ‘indigenous law’, or ‘living law’ is still a problematic issue in Indonesian scientific discussion and should only be briefly mentioned in this presentation. The term ‘Adat law’ was originally not used in Indonesian society and was first systematically used by the Dutch. Van Vollenhoven, considered the ‘father of Indonesian Adat law’ by Indonesian scholars, defined Adat law as law that is not based on codified legal rules from the legislator. This definition is still used by contemporary Indonesian scholars. Adat law in this sense contains sanctions, making the character of ‘law’. It was characterized by Van Vollenhoven as dynamic and flexible folk law, which combines the term with the often-used term of ‘living law’. There are numerous discussions in Indonesian literature about Indonesian customary law, its functions, and significance, but the terminology has not been clearly defined and the role of religious law is also subject to numerous publications.Therefore, having read various contributions on the topic, I am left confused because some of them discuss the existence of legal principles of living customary law and describe them as “national Indonesian principles,” which can replace parts of the post-colonial Indonesian law, but they do not clearly identify these principles. The topic seems to be of almost patriotic importance to Indonesia, making it particularly difficult for foreign scholars to approach the subject in presentations before Indonesian colleagues. My contribution should be seen in light of this difficulty, as a first observation of the phenomenon from a foreign perspective.The term Adat is already difficult to comprehend, and this is even more true for the term “local wisdom” in a legal context. So, what is the “Local Wisdom” that I am asked to talk about? The Terms of Reference of our conference describe the meaning of “local wisdom” mainly as the clash of market actors in local Balinese tourism that can lead to conflicts, which the law should resolve. These conflicts are said to occur because local communities and institutions, based on a kind of traditionally grown trust, seek to build and maintain their business relationships in the tourism industry. This trust, which one could call “traditional good faith,” meets the need to regulate contractual arrangements more formally in terms of contract law (“more official...instead of just relying on promises or good faith”).In this sense, local wisdom is an aspect of good faith. Based on this understanding of the term, I have no systematic issues with the term “local wisdom.” However, it should be noted that good faith and contract, as a predictable shaping of legal relationships between market actors, should not be seen as opposites. It is possible and necessary to resolve disruptions in contractual relationships in light of good faith and, if necessary, adapt contractual regulations. Here, “local wisdom” should not be understood as a unique source of good faith, but as a general aspect that can influence the expectations of the contracting parties and their trust in shaping the law. This raises the question of which factors should be taken into account by the non-local contracting party in good faith, and which should not. It is a question of the concrete assessment of the structure of interests and the balance of the contract, how to allocate risk and assign external aspects to the contracting parties and which aspects should be considered subsequently.This is a theoretical matter, and it is unlikely to play a significant role in practice since local market actors and communities have the freedom, within the framework of private autonomy, to incorporate their traditional interests into the contract negotiations. This allows for traditional interests to participate in the “equivalence justice” of the contract. However, if the traditional interests of the local community result in unacceptable consequences for the contract’s execution, the question of whether these reasons can lead to a change in the contract’s basis may arise. In civil law systems, the clausula rebus sic stantibus is regulated as a limitation of the pacta sunt servanda principle and falls under the principle of good faith (bona fides). If the invocation of “local wisdom” by one party leads to the other party having to agree to an adjustment, it would have to be examined.I would like to give you an example of this, which seems credible even if no prove about the issue can be delivered due to the ‘popular’ source: A person without Indonesian citizenship acquired the right to use a plot of land with a house in Bali ten years ago. Since foreigners cannot acquire land ownership in Indonesia themselves, the foreigner had agreed on a legal arrangement with an Indonesian citizen resident in Bali, in which the Indonesian acquired ownership (hak milik) of the land with the foreigner’s money and agreed on right to use for the foreign partner. After ten years, the foreigner wanted to sell the property again to move to his country of origin. The agreement with the Indonesian partner stipulated that the Indonesian partner must agree to the sale of the plot on the wish of the foreign partner and would receive 10% of the sale amount in the event of a sale. In the case described, however, the Indonesian partner seems to have refused to sell the property on the agreed terms. He was not satisfied with the 10% share and demanded a 70% share instead. As justification for this, he argued that the contract terms should be changed because he had spiritually enhanced the property over the years through certain religious rituals and this required a revaluation of his shareholding.It is not known whether the case was heard in an Indonesian court and how it was finally settled. Assuming the case had occurred as described, from the perspective of Indonesian civil law, it is clear that no change in the business basis of the contract occurred as a result of the Indonesian partner’s spiritual acts, which can lead to an adjustment of the agreement between him and the foreign contractual partner. Just as local communities depend on their interests in cultural identity being taken into account even in legal relations with partners coming from outside, foreign investors must be able to rely on certain standards of contractual obligation. The principle of good faith would be grotesquely overstretched if local contracting partners could use fuzzy notions of ‘local wisdom’ to make contractual arrangements more flexible in their favour.Another example of the clash between traditional legal customs and supra-regional legal ideas in highly traditional markets with supra-regional economic importance, such as Bali, is the handling of legal disputes and methods of dispute resolution. The trust of traditional communities in supra-legal ties of interest in business relationships, as mentioned in the Terms of Reference to this Conference, meets a systemic trust in formal contractual regulations of non-local actors. The reference points of trust of the respective groups of market actors thus differ. This also affects dispute resolution. According to Sulastriyono, the voluntary character of traditional customary law has the advantage over civil law methods of litigation and dispute resolution of a ‘win-win’ solution, which leads to greater acceptance of the solution by the parties to the conflict. In theory, this is undeniable. However, it is questionable whether this acceptance can also be achieved among contract participants who do not originate from the respective culture, because the existence of sufficient advantages for a party may well depend on the integration of the party in the respective local society. Moreover, the indisputable advantages of consensual dispute resolution can also be well integrated in state procedural law via mediation mechanisms.Cases such as the one outlined one above would in principle be likely to erode the confidence of foreign investors in Indonesian law in general if courts do not rule clearly and draw clear boundaries here. The example seems to be a particularly extreme case, but it shows how important it is to clearly determine the meaning and possible role of terms such as ‘local wisdom’ and ‘tradition’ for use in law. Culturally related aspects are prone to serve as a tool for discrimination against individuals and companies that do not belong to the respective cultural environment. The difficulty, for example, of establishing an intellectual property right on cultural heritage follows not only from the contrast between individual subjective rights and collective subjective rights. It follows above all from the problem of determining the collective rights holders who are to benefit from ‘their’ cultural heritage. Who is a member of a certain culture? Is there a generational link or does it depend on the integration of the individual into his or her living environment? If the legal system does not want to fall back to abstruse considerations of ‘blood identity’, what remains is the assignment of such claims to territorial authorities or the state itself, whose task it is to protect cultural diversity on its territory. This is the path that the Indonesian legislature had taken in Art 38 Law No 28/2014 on copyright law.The misuse of cultural aspects carried into the application of law is also visible in another aspect: In another paper I have pointed out the problem that the concept of traditional customary law in Indonesian law and the position of Adat law in the hierarchy of norms seems in need of clarification. Shidarta notes that there is no sufficient clarity about the relationship between Adat law and state law and thus no consistent system of Indonesian law as a whole. Accordingly, the maturation of an independent Indonesian legal system suffers to this day from the internal conflict with the colonial legacy of existing state law based on Dutch civil law and the lack of a consistent overarching pluralistic concept of law. This is seen by Shidarta as a major reason why the systematic positions of customary law, Islamic law and western law within national law are not clearly defined and why a clear hierarchical determination of the various sources of law in relation to national law is lacking. The doubts about the systematic location and certainly also the failure to establish the principles of traditional customary law as original Indonesian law after the attainment of independence instead of the sources of law inherited from the colonial period are probably due - in addition to the idea of the state founders of an Indonesian unitary state (‘eenheidstaat’) - above all to the disagreement about the concept of customary law, which is formally understood in the sense of a binding source of law defined during the colonial period, or as post-colonial Adat law in the sense of traditional customary rights of various Indonesian ethnic groups either with a binding character or as norms of social order based on voluntariness. In this respect, too, different definitions of the term can be found in the literature:There is thus generally a more philosophical recognition of the importance of traditional customary law in the sense that customary law reflects the actual sense of law of the people and the Indonesian people as a nation. The latter statement seems problematic to me because the statement only applies with regard to the significance of customary law as a source of law, but not to the content of the individual customary laws of the various ethnic groups, in which different legal customs apply in each case. It therefore seems questionable to me whether Adat law can be understood in the sense of an alternative to Indonesian state law. In my opinion, Adat as a source of concrete legal norms has a supplementary development perspective in the communal area. Here it can certainly have an influence on economic life in the regions if it is applied consistently and transparently, and its importance would grow especially if the autonomy of municipal territorial units were strengthened, and a strong federalism were developed. However, a scientific inventory of norms and principles of local customary law is then required, and a clear formulation of such norms is needed, because it must be ruled out that the invocation of undefined, non-transparent or arbitrarily formulated Adat rules unduly restricts the freedom of market actors and are used as protectionist instruments in the provinces.In this sense, I believe that the postulate that Indonesian law must simply recognise Adat law as it has grown and as it is applied alive within the Indonesian local societies falls short, because the compatibility of social rules based on voluntariness and constantly changing with the overall legal system based on the rule of law is at least debatable. In other words: either one renounces the legal certainty and predictability of legal norms in the area of traditional customary law. This could then constitute a breach of the constitutionally enshrined principle of the Rule of Law. Or one formulates clear norms based on traditional legal principles, which have the character of binding legal norms and applies them in the sense of subsidiarity in the local environment with priority over central state law in certain predefined aspects. Then the rules of the hierarchy of norms must be correspondingly clear. However, the question of the hierarchy of norms then no longer presents itself as a problem of the nature of Adat or customary law because the latter would have lost its character as actual customary law. The advocates of a strong recognition of Adat by state law will, however, reject this path because they see the advantage of traditional customary law over state law precisely in its flexibility and ability to change. This flexibility would no longer be readily available through an integration of traditional principles into a local classical law in the sense of imperative norms.A clear hierarchy of norms defined by constitutional law seems indispensable, because such local customary law cannot displace state law without further ado, but only if the principle of subsidiarity and the better regulation of local circumstances by local law indicates otherwise. This would also be in line with the philosophical assessment of local customary law as the law that best captures the living conditions of the people in its cultural area of application. The importance of the principle of subsidiarity should generally be given more attention in the discussion on legal pluralism in Indonesia. This can not only ensure greater recognition of traditional customary law, but also enable the transparency necessary for the predictability of the law.Insofar as Adat is to be understood as the source of ‘abstract normative’ aspects, as certain common Indonesian legal values and principles in the sense of a ‘pan-Indonesian’ legal order and, as such, is to find its way into an independent state Indonesian civil law, legal scholarship in Indonesia will also have to identify and clearly define these principles. In doing so, it will be necessary to determine which principles of traditional customary law in the various regions of the archipelago are suitable as overarching legal principles, so that they can possibly have an identity-forming effect in a national private law. This difficult process might lead to reform of the Indonesian Civil Law which meets the special requirements of a socially and culturally integrated legal system.Indonesia as a state with a unified internal market needs a cross-cultural private law and commercial law. Consideration of the interests of local communities and traditions is of importance in a multicultural state. The Indonesian constitution therefore emphasises the specifics of traditional rights and thus guarantees Adat its own status in the legal system. However, there seems to be a lack of a clear hierarchy of norms in the legal system and a clear definition of the nature of Adat. A hint of a certain hierarchy between Adat and state law is indeed found in agricultural law (Art. 5 Law No. 5/1960 on the Basic Regulations of Agrarian Principles) and in forestry law (Law No. 41/1999 on Forestry). Adat is recognised here but must harmonise with state law. It is therefore likely to be in a relationship of subsidiarity to state law. The fundamental assertion of the primacy of state law over other co-existing legal systems is also in line with the view of Indonesian legal scholars such as Sunaryati Hartono. Referring to Griffiths’ formulation of “weak legal pluralism”, where co-existing legal systems are subordinated to a dominant formalistic national law, it can be stated that the Indonesian legal system follows this model.In my opinion, the integration of traditional customary law into the legal system should not be done as a mere tolerance of state law towards deviating regulations of facts in certain regions. From my perspective as a foreign observer, this seems to lead to significant problems for the development of the Indonesian economy and for investment. In particular, this seems to me to be the case for Bali. Local Wisdom can be incorporated into the contractual relations of the parties within the framework of private autonomous arrangements. A ‘creative’ qualification of protectionist measures against outside market actors or the justification of the failure to sanction breaches of contract or violations of law against outsiders as ‘Adat’ or ‘protection of local traditions’ should be consistently avoided.Incidentally, it seems to me that in contract law there is no real opposition between state law and traditional customary law. Either the parties trust each other, in which case state law does not prevent an agreement based on good faith. Or they do not, in which case only state contract law can lead to proper solutions. The same applies to traditional dispute resolution methods, to which the parties to the conflict can easily submit. In contrast, the integration of customary law as independent Indonesian legal principles or as legal norms at the local or municipal level into Indonesian law would require considerable academic effort. For this, the principles concerned would have to be clearly identified, systematised, and formulated to be able to substantiate a claim to validity beyond the respective local communities. The mere reference to historically evolved convictions of local communities is too vague. The term ‘local wisdom’ seems to me to be problematic in this sense to accurately describe the question of the collision of traditional customs and expectations of outside market actors, especially since it is already conceptually positively evaluative. Finally, it should not be forgotten, that the continental European codifications are culturally neutral and in big parts based on the Roman law. Roman law itself was not developed under the cultural framework of northern and middle European regions, however it served well as source for the modern European codifications. These codifications are working fine until these days in different nations without obvious incompatibilities with local traditions. The amount of a ‘Volksgeist’ after the idea of Friedrich Carl von Savigny within the Private Law does not play a big role in the contemporary discussion as law should be seen in a pragmatic way as a viable tool to organize the modern society. Indonesia is an important economically emerging nation. As such it might be a good idea to keep an internationally compatible private law, which might be carefully adapted to certain peculiarities of the Indonesian society. The use of general clauses as entrance doors for local legal convictions seems to be a good way for that and a clearly defined legal hierarchy with a constitutionally based legal subsidiarity principle seems important. In contrast, the foundation of modern law on nationalistic, local, or indigenous traditional customs should only be done with extreme caution, if at all. The contemporary discussion on the role of Adat in Indonesian law shows the great difficulty of determining viable legal rules that can enter a future reformed Indonesian private law as ‘originally Indonesian’. The criticism against Von Savigny’s ‘Volksgeist’ idea also applies here: Defining who the ‘people’ are and what constitutes their common identity is already hardly rationally possible in a non-multi-ethnic state, even more in a multi-ethnic state. National identity-forming circumstances are hardly suitable as common principles for pluralistic societies.

Compensation in the resolution of medical disputes in Indonesia is crucial as it provides financial compensation for patients who have suffered losses due to malpractice. Data shows an increase in the number of complaints and lawsuits related to medical disputes each year. Determining fair and proportional compensation often poses complex challenges as it involves various aspects such as the level of patient loss, healthcare service standards, medical evidence, and socio-economic factors. Therefore, a careful and holistic approach is needed in determining compensation to ensure justice and improve healthcare practices. The aim of this study is to identify the role of compensation in the resolution of medical disputes in Indonesia and to analyze its legal and ethical implications. The research method used is qualitative with a normative juridical and empirical approach. The results show that compensation in the resolution of medical disputes in Indonesia is important to ensure justice for patients and the responsibility of healthcare providers. The process of determining compensation involves mediation, negotiation, and formal legal processes. The Health Law and health regulations require hospitals to have dispute resolution mechanisms and provide patients with legal rights to compensation. Legal and ethical aspects such as integrity and justice are considered in determining compensation, creating a holistic dispute resolution system to maintain justice and the quality of healthcare services.

Dispute resolution is an important part of maintaining order and justice in the legal system, both through litigation and non-litigation. As the public's need for faster, cheaper, and more peaceful dispute resolution grows, Alternative Dispute Resolution (ADR) methods such as mediation and conciliation are becoming increasingly relevant choices. This article aims to analyze the differences between mediation and conciliation, explain the role of the conciliator in the conciliation process, and examine the legal regulations governing both dispute resolution methods in Indonesia. This study examines the differences between mediation and conciliation in dispute resolution, the role of the conciliator in the conciliation process, and the legal regulations governing mediation and conciliation in Indonesia. This study uses a normative juridical method with a qualitative approach based on laws and legal literature. The results of the discussion show that although mediation and conciliation both involve a neutral third party and aim to reach a peaceful agreement, there are fundamental differences in the process, the role of the third party, and the level of formality. The conciliator plays a more active role than the mediator, with the authority to provide opinions and design settlement proposals, but without making binding decisions. Regulations such as Perma No. 1 of 2016, Law No. 2 of 2004, Law No. 32 of 2009, and Law No. 30 of 1999 are the legal basis that strengthens the position of mediation and conciliation as legitimate instruments in resolving various types of disputes in Indonesia. Keywords: Dispute Resolution, Mediation, Conciliation, Conciliator, Indonesian Law

&lt;p&gt;建立醫療事故發生時的院內即時溝通及關懷機制，是我國《醫療事故預防及爭議處理法》（以下簡稱：醫預法）的立法重點之一。本文從「事故關懷」概念的緣由和法制化過程出發，說明醫預法強調即時關懷作為醫療爭議解決方式的理由，再進一步探討醫預法在「說明、溝通與關懷」章節中，賦予醫療機構之重要義務以及實務作法，包括：組成關懷小組；提供說明、溝通、協助及關懷服務；時限內提供病歷複製本；以及對員工提供關懷與協助等。關懷機制的順暢運行，有助建立互信，緩和醫病緊張關係，避免演變成醫療爭議。&lt;/p&gt; &lt;p&gt;&amp;nbsp;&lt;/p&gt;&lt;p&gt;One of the legislative focuses of Taiwan&amp;rsquo;s Medical Accident Prevention and Dispute Resolution Act (hereinafter referred to as &amp;ldquo;the Act&amp;rdquo;) is establishing immediate in-hospital communication and care mechanisms when medical accidents occur. This article initially explored the origin and legalization of the concept of &amp;ldquo;medical accident care&amp;rdquo; to elucidate the reasons the Act emphasizes immediate care for resolving medical disputes. Furthermore, it delves into the significant obligations and practical methods imposed on medical institutions in the chapter &amp;ldquo;Description, Communication, and Care&amp;rdquo; of the Act, which includes organizing medical accident response groups; providing description, communication, assistance, and care services; providing copies of medical records timely; and offering care and assistance to employees. The smooth operation of these care mechanisms contributes to building mutual trust, mitigating the tension between patients and healthcare providers, and preventing the escalation of medical accidents into medical disputes.&lt;/p&gt; &lt;p&gt;&amp;nbsp;&lt;/p&gt;

Medical disputes that are resolved through litigation often have negative impacts, such as the criminalization of medical personnel, waste of time and money, and the non-fulfillment of a sense of substantive justice for victims. In this context, the restorative justice approach has emerged as an alternative dispute resolution that is more humanist, oriented towards recovery and reconciliation. This study aims to analyze in depth the potential and urgency of applying the restorative justice approach in medical dispute resolution in Indonesia, as well as evaluate the legal, ethical and institutional obstacles faced. The method used is normative legal research with a conceptual approach and statute approach. The results of the study show that restorative justice can be a fairer, faster, and more efficient solution in resolving medical disputes if supported by appropriate regulations, professional mediation institutions, and active involvement of professional organizations and law enforcement officials. Therefore, policy reform is needed through the establishment of specific rules on RJ in medical disputes, the provision of mediator resources who understand medical ethics, and strengthening legal protection mechanisms for all parties. Thus, restorative justice in medical disputes is expected to be able to create a more humanist, responsive, and socially just health law system in Indonesia.

Medical dispute resolution in Indonesia has become an important topic along with the increasing number of cases of medical malpractice and negligence. The recently passed Law Number 17 of 2023 concerning Health provides a new direction in regulating medical disputes, emphasizing non-litigation resolution through mediation, arbitration, and a restorative justice approach. However, although this law offers better protection for medical personnel and patients, the urgency of establishing a medical court remains necessary. This is because the existing medical dispute resolution procedures often do not create a sense of justice for both parties, both medical personnel and patients. A medical court that has a specialty is expected to ensure justice by involving judges and experts who understand complex medical issues. Thus, medical courts have the potential to become institutions that accommodate the need for fast, fair, and appropriate resolution of medical disputes in accordance with legal standards and medical professional ethics. This study aims to describe the resolution of medical disputes after the enactment of Law Number 17 of 2023 and analyze the urgency of establishing a medical court to improve the quality of the health law system in Indonesia.