Court-annexed Mediation Research Articles

Exploring Efficacy

The rising global divorce rate is reshaping the landscape of family dispute resolution, moving away from the adversarial or litigation system toward an alternative dispute resolution known as mediation. This global trend is also observed in Indonesia where the Supreme Court has mandated the use of mediation in civil cases. "Everybody wins, nobody loses" as the primary slogan of mediation emphasizes a win-win outcome for all parties involved, avoiding any losers. However, assessing its efficacy in handling divorce cases in Indonesia becomes crucial. This is mainly because the settlement rate has been discovered to be low in Indonesia since the mandatory implementation of court-annexed mediation for almost two decades compared to other countries such as Australia and the United States. In both countries, settlement is not only based on agreements but also on the process that satisfies the parties. Therefore, this study aims to examine the conceptual issues underlying the low effectiveness of divorce mediation by questioning agreements as a measure of divorce mediation effectiveness. This study uses the sociolegal framework to critique the Supreme Court Regulation 1/2016 regarding Mediation in court and its dynamics in divorce cases. Moreover, courtroom study is applied to observe the mediation process. The results showed that the success of mediation revolves around the number of agreements reached by the parties and the process did not focus on the characteristics of divorce cases, thereby considered not suitable for all cases. Furthermore, the court-annexed mediation regulation creates ambiguity between the use of marital mediation to reconcile the parties and divorce mediation to proceed post-divorce agreement or both.

ASSESSING THE EFFICACY OF COURT-ANNEXED MEDIATION IN DISPUTE RESOLUTION WITHIN ANGELES CITY

This paper conducts an in-depth investigation into the status of Court-Annexed Mediation in Angeles City, employing a multi-faceted approach that encompasses a comprehensive literature review, interviews with experienced dispute resolution practitioners, and a survey targeting court users. The study aims to elucidate the existing landscape of Court-Annexed Mediation, its inherent advantages, as well as the notable challenges that have impeded its full-scale adoption. The research findings underscore the immense potential of Court-Annexed Mediation, yet reveal that its implementation in Angeles City remains constrained primarily due to infrastructure deficiencies, a shortage of qualified mediators, and limited awareness of this beneficial process among court users. KEYWORDS: Court Annexed Mediation, Dispute. Dispute Resolution

Inside Indonesia’s Religious Courts: An Argument for Domestic and Family Violence Screening and Exemption from Compulsory Mediation

Abstract In Indonesia, Islamic norms have been codified into State family law and divorce petitions are handled by State ‘Religious Courts’ (Pengadilan Agama). Formal, court-annexed mediation at the Religious Courts exists alongside customary (adat) mediation at the community level. In cases involving domestic and family violence, victims are socially expected to mediate at the community level before proceeding to the Religious Courts for formal determination of divorce petitions. At the Religious Courts, mediation is currently compulsory for all divorce petitions, even where there is proof or allegations of domestic and family violence. We argue that mediation should not be compulsory for victims of domestic and family violence who seek divorce via State family law avenues. In practice, victims bringing divorce petitions to the courts have generally already participated in mediation at the community level and therefore, further mediation has little—if any—utility. Further, there are well-documented risks for victims of domestic and family violence in mediation contexts. We draw on the comparative models of family violence screening from Australia and Canada to argue that similar screening processes should be introduced into Indonesia’s Religious Courts in order to exempt such cases of violence from compulsory mediation.

The role of judges at the pre-mediation stage of court-annexed mediation: A case study of the situation in the Czech Republic

AbstractMediation as an alternative dispute resolution mechanism has a very long history, especially outside of the adjudicative space. It has gradually also found its way as an adjunct to the court system in the form of court-annexed mediation. As proven by quantitative studies, mediation in the region of Central and Eastern Europe is still, however, a relatively novel and underutilized instrument. Thus, this study explores the role of judges in court-annexed mediation using the case of the Czech Republic. It presents a piece of empirical research built on a single qualitative case study of mediation practice as seen and understood through the experience of district court judges. The latter represent the core actors that contribute to shaping mediation practice through their attitudes and activities, influenced by their own interpretation of phenomena, when entering into the process at the pre-mediation phase – when the activity of the judge is foreseen by the legislative framework to be the most significant. Offering a comprehensive description of the research methodology, the study also aims to contribute to academic debate that calls for more case/comparative studies of relatively unexplored phenomena in the wider region of Central and Eastern Europe.

Alternative Dispute Resolution in the Contemporary World

Rule of law and ADR are one of the benchmark in determining the underdeveloped world from the developed. Therefore, in today’s contemporary world, the role and application of alternative dispute resolution (ADR) is increasingly attracting attention in legal and academic discourses. Its application in various jurisdictions particularly is said to strengthen the rule of law. From a development perspective, the main aim of ADR is to increase the possibilities and opportunities for the underprivileged to attain maximum social, economic and legal rights in their daily lives. This in turn helps the rule of law to sustain and consolidate contributing to human security, well-being, and dignity- a vital component for progress and socio-economic developed. ADR modes in a supplementary component in legal domain such as commercial arbitration and court-annexed mediation in civil litigation, also provides immense benefits for development.The purpose of this paper is to briefly review the efficacy of ADR modes in different jurisdictions. It then examines how ADR impacts the rule of law. The paper finds that the adoption of various ADR modes has made a considerable impact in various jurisdictions.

Examining the Efficacy of the Court Annexed Mediation as a Way of Reducing Backlog

Examining the Efficacy of the Court Annexed Mediation as a Way of Reducing Backlog

A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria

As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.

Intimate partner violence and family dispute resolution: 1-year follow-up findings from a randomized controlled trial comparing shuttle mediation, videoconferencing mediation, and litigation.

We report 1-year follow-up outcomes from a randomized controlled trial involving parents resolving separation or divorce-related disputes and reporting high levels of intimate partner violence (IPV). We compared traditional litigation to two mediation approaches designed to protect parent safety (i.e., shuttle and videoconferencing) at a court-annexed mediation division. The sample was not nationally representative, limiting generalizability. We found no significant differences across conditions in parent reports of satisfaction with the process, level of continuing IPV or interparental conflict, parenting quality, parent functioning, or child functioning. Parents in traditional litigation, relative to parents in mediation, reported significantly more social support. Also, parents in videoconferencing, versus those in shuttle, mediation reported more PTSD symptoms from IPV. Based on coding of legal records, no significant condition differences emerged in relitigation rates in the family court case or charges of study case IPV-related incidents. Given few differences across study conditions, including in satisfaction levels, in contrast to the immediate outcomes, the 1-year follow-up findings do not clearly favor mediation or litigation. We conclude that when both parents in cases with reported high IPV are willing to mediate, mediation designed with safety protocols and carried out in a protected environment by well-trained staff may be an appropriate alternative to traditional litigation. We consider implications of our findings;for example, we discuss implications of the form of videoconferencing mediation examined for conducting online mediation, including during the COVID-19 pandemic. (PsycInfo Database Record (c) 2021 APA, all rights reserved)

A legal analysis of labour dispute prevention and resolution under individual employment law in Zambia: Willard Mutoka v Chambeshi Water and Sewerage Company Limited (Comp. IRCLK/382/2018)

This case note is a legal review and analysis of Willard Mutoka v Chambeshi Water and Sewerage Company Limited, a Zambian case relating to a labour dispute under the individual employment law sphere. The authors/reviewers herein were retained as counsel for the respondent company in the matter in casu. Appreciating that Zambia has both individual and collective labour dispute prevention and resolution mechanisms, the authors/reviewers in consultation with all parties involved opted to pursue the alternative dispute resolution approach under the High Court for Zambia (Amendment) Rules, 1997 (Court-Annexed Mediation Order XXXI Rule 4), instead of litigation, resulting in the faster, cheaper and final settlement of the case in full satisfaction and accord of both parties as discussed hereinafter. Unlike arbitration awards which are conclusive and final, mediation agreements or settlements need to be registered in the courts for them to be recognised as binding.

Institutions of court settlement and Judicial /court-annexed mediation as part of the unified system of justice

In Georgia, the existence and strengthening of two important legal institutions - court settlement and court mediation may provide opportunities, in order to ensure the common goal – the satisfaction of the interests of individuals, in the civil proceedings, much faster, and with less expanses, than it can be achieved in civil process. Consequently, in the court system, highlighting their importance, may excel the unified chain of justice and ensure trust towards the judiciary. In the paper, it is considered relevant, to describe the fact of settlement in the court with the term "court settlement" and not like "settlement", as the term “settlement” can also be considered to describe an agreement, reached by the parties, before the litigation process. At the same time, in order to ensure the institutionalization of mediation in Georgia, it is necessary to continue attempts, not only in the direction of improving the legislation, but also to introduce and implement new mediation programs. The implementation of the presented recommendations, as a result, may facilitate the introduction of legal institutions and the improvement of the unified chain of justice.

PERTANGGUNGJAWABAN DOKTER DAN MODEL PENYELESAIAN PERKARA MALPRAKTIK MEDIK DI INDONESIA

There is an international tendency to divert medical dispute from the litigation model (in court settlement) to the out-of-court dispute models (out of court settlement) which leads to the win-win situation of the paradigm.
 This paradigm has actually started to be adopted in Indonesia only the implementation is still not encouraging. Law Number 36 Year 2009 on Health (Health Law) provides that disputes arising out of negligence of health personnel must be resolved through mediation (Article 29). This provision has not fully become the reference of the public and law enforcement officers related to the settlement of medical disputes in Indonesia. The tendency of patients in Indonesia to prosecute doctors through legal channels is still quite high. This is further exacerbated by the attitude of law enforcement officers who seem less concerned with the provisions of Article 29 of Law Number 36 Year 2009 on Health above.
 The application of mediation means in the dispute of medical disputes as required by article 29 of the Health Law faces a number of obstacles in the field. One of the obstacles is the lack of implementing regulations that explain how such mediation mechanisms should technically be run. There are a number of laws and regulations governing mediation such as Supreme Court Regulation No. 1 of 2008 on Mediation Procedures in Courts and Law No. 30 of 1999 on Arbitration and Alternative Dispute Settlement. Supreme Court Regulation No. 1 of 2008 regulates the court-annexed mediation while Law Number 30 Year 1999 regulates the arbitration and Alternative Dispute Resolution (ADR) institutions. In addition, there are also some institutions that perform mediation functions such as: Consumer Dispute Settlement Agency (BPSK), Ombudsman, and Badan Pengawas Rumah (RSB). All such institutions are deemed relevant for the settlement of medical disputes. It is thus quite confusing at the operational level.

TOWARDS EFFECTIVE COURT- ANNEXED MEDIATION ON COMMERCIAL DISPUTES IN ZANZIBAR

Commercial activities in Zanzibar are developing every day. This development, however, contributes to the rise of disputes among its key players such as sellers, buyers, suppliers and consumers of goods or services. To ensure the commercial disputes are resolved effectively and speedily the government of Zanzibar has established a commercial court division at the High Court level to settle commercial disputes. One of the procedures of handling commercial disputes in commercial court is through court-annexed mediation. Thus, this paper examines the existing law governing the court-annexed mediation in Zanzibar as a way to find how far it can help to solve commercial disputes effectively without engaging in litigation. The methodology adopted in this paper based on the content analysis of legislations, decided cases, leading textbooks and journal articles. The study also uses a comparative method where necessary to address the study in question. The paper proposes some measures for improving existing court-annexed mediation in Zanzibar such as; amendment of Civil Procedure Decree, making court-annexed mediation compulsory, mediation at subordinate courts and public awareness on the court-annexed mediation.

Enhancing The Court Annexed Mediation Environment in Kenya

The paper explores the workings of court annexed mediation in Kenya. With the recent entry in force of the Singapore Mediation Convention, the place of mediation has been elevated. Consequently, some of the shortcomings previously associated with mediation such as recognition and enforcement of settlement agreements have now been catered for under the Convention. This has created a conducive environment for the growth of mediation. In Kenya, court annexed mediation was introduced by the judiciary in 2015 and has witnessed notable success. The paper argues that if court annexed mediation is well actualised, it can enhance access to justice in Kenya and enable the country reap the benefits of mediation as a form of Alternative Dispute Resolution (ADR). The paper highlights some of the successes of court annexed mediation. It also pinpoints some concerns and challenges facing court annexed mediation and suggests solutions aimed at enhancing the mediation environment in Kenya in line with the spirit of ADR embraced under the Constitution of Kenya, 2010.

Dispute Resolution Through Mediation in the Court (Court Annexed Mediation) After the Enactment of Supreme Court Regulation No. 1 of 2016

This research aims to examine how the Procedure for Dispute Resolution Through Mediation in the Court and what are the consequences of the enactment of Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures. This study uses a normative method with a statutory approach and a case approach. The findings from the results of this study that with the enactment of Supreme Court Regulation No.1 of 2016, it turns out that it can accelerate the process of settling cases to 30 days and alleviate the costs of cases. Another finding is that there has been a significant increase in settlement of mediation cases compared to the enactment of Supreme Court Regulation No.1 of 2016.

URGENSITAS PENDEKATAN PSIKOLOGI DALAM PELAKSANAAN MEDIASI DI PENGADILAN

The court mediation tends to ignore psychological aspect of the parties. It was frequently put aside by mediator judges as the mediation held just for formality process. It caused the lack percentage of successful mediation and the parties failed to recognize the primary problem. The research’s aim was to analyze the importance of implementation psychological approach to court-annexed mediation and its implication to the result of the mediation process. The research also aims to identify the implication of psychological approach toward parties’ perspective of their dispute. The result of the research has shown that implementation of psychological approach through mediation has arisen the probability of successful mediation. If otherwise happened, the parties have a broader perspective on their problem and released a new constructive way of thinking.Keywords: mediation, court, psychology, perspective

REVITALIZATION OF BADAN PENASIHATAN, PEMBINAAN DAN PELESTARIAN PERKAWINAN (BP4) IN PERFORMING COURT-ANNEXED MEDIATION FOR MARITAL DISPUTES IN RELIGIOUS COURT IN D.I.YOGYAKART

This research identify the revitalization of Badan Penasihatan, Pembinaan dan Pelestarian Perkawinan (BP4) after The 14th BP4 National Conference in 2009, in performing Court-annexed mediation for Marital Dispute at Religious Court in D.I. Yogyakarta. This research founds several institutional transformation of BP4 including the Legal Basis, Institutional Form, Institutional Relation with Ministry of Religious Affair, Employement/Management Provisions, and Financial Provisions. In Performing Court-annexed mediation. BP4 in D.I. Yogyakarta has been cooperating with 2 (two) Religious Courts, both in Wonosari and Yogyakarta through Memorandum of Understanding in form of cooperation in the placement of certified mediator from BP4 and cooperation in funding the certified mediators. All Mediators are bound by Regulation of The Supreme Court No. 1 year 2016 concerning Procedures of Court-annexed Mediation, related to Types of Cases Mediated, Mediator’s Fee, Venue of Mediation, Period of Mediation, and Mediator’s requirement.

Navigating Cultural Complexity within an Asian Court's Mediation Programme: A Perspective from Singapore

The impact of globalisation has been far-reaching not only on Asian legal jurisprudence, but on the administration of justice within the courts. In response to the global growth of Alternative Dispute Resolution (“ADR”), a number of courts have established court-annexed mediation programmes. These programmes are increasingly encountering cultural diversity amongst the disputants. Singapore is a case in point, being a microcosm of Asia with its potpourri of cultures and external influences.This paper examines the impact of cultural complexity on the development of the Singapore State Courts’ mediation programme for civil cases. It also analyses the implications of the increasing use of court-annexed mediation on access to justice. These issues are discussed in relation to judicial mediation, a unique mediation model which has been in place in the Singapore State Courts for more than 20 years. Judicial mediation brings to the fore many intriguing issues concerning the role of the judge in advancing dispute resolution and access to justice, as well as how the judge mediator’s role is best utilised to respond to the variegated cultural orientations of court users.It is submitted in this paper that much caution is needed before concluding that judicial mediation is consonant with a society’s culture. A more nuanced and calibrated approach is required in order to ensure that both the design of the mediation programme and the judicial mediation style are not incongruous with the individual cultural orientations of disputing parties. In addition, judicial mediation has much potential to contribute to greater access to justice, but must be supplemented with ample safeguards to ensure that both procedural and substantive justice are advanced.

From “Access to Justice” to “Barrier to Justice”? An Empirical Examination of Chinese Court-Annexed Mediation

AbstractThe literature on Alternative Dispute Resolution (ADR) has argued for the general advantages of courts’ providing mediation services. However, courts’ involvement in mediation cannot always be justified by those advantages, unless (1) the mediation process is a consensual procedure based on party autonomy and (2) where the initiation is mandatory, the courts’ allocation of cases is justified both by the public interest and a case selection system. In this context, this article empirically tests whether the established arguments from ADR theory can be applied to justify all Chinese court-annexed mediation practices. This study provides a negative answer, owing to the fact that some Chinese court-annexed mediation practices found in the fieldwork aim mainly at clearing dockets and achieving case management for the courts’ organizational interests. Offsetting the advantages, those Chinese court-annexed mediation practices prevent disputants from gaining access to the official adjudication procedure.

Litigation and the timing of settlement: evidence from commercial disputes

Although an overwhelming proportion of all legal disputes end in settlement, the determinants of the timing of settlement remain empirically underexplored. We draw on a novel dataset on the duration of commercial disputes in Slovenia to study how the timing of settlement is shaped by the stages and features of the litigation process. Using competing risk regression analysis, we find that events such as court-annexed mediation and the first court session, which enable the disputing parties to refine their respective expectations about the case outcome, in general reduce case duration to settlement. The magnitude of the respective effects, however, varies with time. Completion of subsequent court sessions, in contrast, does not affect the time to settlement. Judicial workload affects the timing of settlement indirectly, via the effect on the timing of the first court session. We also examine the effect of other case and party characteristics.

Court-Annexed Mediation Practice in Malaysia: What the Future Holds

It is an indubitable fact that the use of mediation as a form of dispute resolution process has gained traction across the globe. More importantly, the practice of mediation has also been transformed through the establishment of several techniques for formalised mediation. This article will provide insights into one of these avenues for formalised mediation, namely, court-annexed mediation practice in Malaysia. It will first discuss the motivations that led to the introduction of such a programme. This will be followed by an analysis of the operational aspects of the practice. A matter of utmost importance concerns the role of the courts and the judiciary in court-annexed mediation and this aspect is considered in considerable detail. This article will then offer suggestions on how some of the challenges that exist and are inherent in this particular method of formalised mediation could be overcome. These views are expressed with the hope that court-annexed mediation can function as an effective alternative dispute resolution mechanism under the umbrella of the Malaysian courts. Last but not least, it is also hoped that the above deliberations will be a catalyst for further comparative research and debates concerning this increasingly imperative form of formalised mediation process across all jurisdictions.