Court Mediation Research Articles

Mediation Procedure in Religious Courts in Indonesia in the Perspective of Thought Wahbah Al-Zuhaily

Marriage is expected to be harmonious and happy. However, there are still many domestic disputes that end in divorce. Divorce cases in Indonesia are still very high. Divorce has many negative effects. Efforts to maintain the integrity of the household is necessary. One of them is mediation. This study aims to find out how the mediation procedure at the Religious Courts in Indonesia is in the perspective of Wahbah Al-Zuhaily's thought? Research conducted by the author using a type of library research (Library Research). While the approach is descriptive analysis; in this case describing and explaining conceptual phenomena. Literature study with main sources At-Tafsir al-Munir fi al-qidah wa al-Syari'at wa al-Manhaj and al-Fiqh al-Islamy Wa Adillatuhu by Wahbah al-Zuhaily and Supreme Court Regulation No. 1 of 2016 governing procedures mediation in court. From the research that has been conducted by researchers, it can be concluded that there are some similarities between the mediation procedures that apply to the Religious Courts in Indonesia and Wahbah al-Zuhaily's views in terms of the importance of mediation in efforts to reconcile disputes and disputes that occur between husband and wife. Likewise, in the main principles of mediation, mediation procedures at the Religious Courts in Indonesia are in line with Wahbah al-Zuhaily's thoughts. As in the qualifications of the judge or mediator and the limits of his authority in conducting mediation. Hopefully this research will bring benefits both theoretically and practically to all interested parties.

PROPOSAL WAKAI SECARA EX-OFFICIO DAN IMPLEMENTASINYA DALAM MEDIASI BERDASARKAN PERMA NOMOR 1 TAHUN 2016

Court mediation procedures in Indonesia are regulated in the Regulation of the Supreme Court (PERMA) of the Republic of Indonesia Number 1 of 2016 (Perma Nomor 01 Tahun 2016). If we compare it with other countries, such as Japan, even since the 1980s the concept of mediation has been popular among the people regarding how to resolve disputes by wakai. If viewed philosophically, the concept of mediation in Indonesia and wakai in Japan must have the same principle, because the value is the same, namely peace. This study aims to provide an overview of integrating the civil law judicial mediation process in Indonesia which is heavily influenced by the wakai system in Japan. The unification was carried out due to the reduced pile of cases in Japan caused by the implementation of the wakai system. However, the author also wants to show that the wakai proposal can also be implemented in the practice of Mediation based on Perma Number 1 of 2016. This research is a normative juridical research with library research method which includes research on legal principles and comparative law research. The approach used in this research is a statutory approach and a conceptual approach. The results of this study indicate that Perma Number 1 of 2016 which is applied to the State of Indonesia with wakai used in Japan materially, has similarities. However, formally or in practice there are some differences, especially regarding the status of the mediator. Several things from the practice of implementing wakai proposals that are considered suitable and in accordance with the character of Indonesia and do not conflict with the provisions of Perma Number 1 of 2016 are related to the practice of ex-officio mediators in formulating wakai proposals in assisting parties in formulating peace agreements.

Mekanisme Jalannya Mediasi Penyelesaian Sengketa Tanah di Pengadilan Negeri Semarapura (Studi Kasus Putusan Pengadilan Negeri Semarapura Nomor 53/Pdt.G/2022/PN Srp)

Land dispute settlement mechanisms are classified as civil settlements. To overcome the accumulation of case files, the Supreme Court has issued Supreme Court Regulation Number 1 of 2016 concerning Mediation in Courts or commonly known as Judicial Mediation. Around 36,771 court decisions were recorded on land cases that were handled through litigation, this shows the high number of disputes that questioned land as an object. There were 166 appealed decisions to the High Court with details of 4 granted, 6 annulled, 68 upheld, 1 level I court decision which was unacceptable and 87 decisions entered into other records. These records are only reports in a district court in Denpasar, at the overall level of course the figure will be many times higher. Land Dispute Settlement Mechanism at the Semarapura District Court (Case Study of Semarapura District Court Decision Number 53/Pdt.G/2022/PN Srp)”. The objectives to be achieved are: 1. to add to the knowledge or insight of students, both readers and writers and all academics regarding the mechanisms for resolving land disputes at the Semarapura District Court (case study of Semarapura District Court Decision Number 53/Pdt.G/2022/PN Srp) . to find out the legal basis and aspects of resolving inherited land disputes at the Semarapura District Court (case study of Semarapura District Court Decision Number 53/Pdt.G/2022/PN Srp). The research method used is empirical juridical research method, namely research based on primary data as the main data source and secondary data as a complement. An interesting problem is to further analyze the success of the mediation process in the Semarapura District Court Decision Number 53/Pdt.G/2022/PN Srp) in accommodating the interests of the parties, so that even though it failed at least mediation played a role in helping to fulfill the elements of a consensus settlement which is national identity.

Mediation Empowerment in Resolution of Civil Claims in State Court

Mediation is a way of resolving disputes through a negotiation process to obtain an agreement between the parties assisted by a mediator as a facilitator, the provisions of which are regulated in Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in District Courts. Mediation in court is the institutionalization and empowerment of peace (court-connected mediation) with the philosophical basis of Pancasila which is the basis of the Indonesian State, especially the fourth precept "Populist led by Wisdom of Wisdom in Deliberation/Representation". The fourth precept of the Pancasila, among other things, requires that efforts to resolve disputes, conflicts or cases be carried out through deliberations to reach a consensus that is filled with a spirit of kinship. Mediation in court is the result of the development and empowerment of peace institutions as stipulated in the provisions of Article 130 Herziene Inlandsch Reglemen (HIR) / 154 Rechtsreglemen voor de Buitengewesten (RBg) which requires a judge who hears a case to earnestly seek peace between the litigants. Efforts to resolve through Mediation apart from benefiting the parties are also beneficial for the Court because Mediation is expected to overcome the problem of accumulation of cases. however, the results of research at the Sengkang District Court Class IB and the Maros District Court Class IB show that the implementation of mediation is in accordance with Perma No. 1 of 2016 concerning Mediation Procedures at the District Court. However, there are several obstacles encountered in resolving civil lawsuit disputes in the District Court, namely egotism, external factors, educational factors, absence of the parties, passing the time limit, aspects of advocates and aspects of mediator judges.

The Effectiveness of Implementing the Supreme Court Ordinance Number 3 of 2022 on Electronic Mediation in Courts

The emergence of the Pandemic in Indonesia announced in March 2020 has impacted on the restrictions preventing crowds, including the implementation of the judiciary. To overcome the issues, the Supreme Court Ordinance Number 3 of 2022 comes into existence. This study aims to find out the provisions for electronic mediation in court based on Supreme Court Ordinance Number 3 of 2022 and to investigate whether the implementation of Supreme Court Ordinance Number 3 of 2022 has been implemented properly. This study employed normative legal research methods aimed at examining the content of positive legal norms or norms containing research subjects, which are legislation and other legal materials. The results showed that the emergence of Supreme Court Ordinance Number 3 of 2022 where the implementation of electronic mediation is established with the principles of voluntary, confidential, effective, safe, and established with the principles of voluntary, confidential, effective, safe and reachable access. In line with Chapter 1 of the Supreme Court Ordinance Number 3 of 2022, electronic mediation is a way of dispute resolution through negotiation to elicit an agreement by using recent technology. Meanwhile, the Supreme Court Ordinance Number 3 of 2022 has been implemented properly in several courts, they are the Rantauprapat Religious Court, the Magelang Religious Court, the Pinrang Religious Court of Class 1A, and the leadership council of the Pekalongan Advocate Association.

Divorce Mediation in Islamic Religious Court in the Era of Covid-19 Pandemic

Divorce is considered a very difficult process in a family. Societies and religious courts work hand in hand to prevent divorce. However, in some cases, divorce can not be avoided due to various social, psychological, and economic problems. As such, to prevent divorce, religious courts provide mediation programs to persuade couples to divorce. During the Covid-19 pandemic, the divorce rate increased, and mediation has been intensively practiced by the religious courts to reduce the divorce rate. However, limited studies have been conducted to understand how mediation is practiced at religious courts during the Covid-19 pandemic. This study uses a qualitative approach to examine the implementation of divorce mediation in a religious court within a regency in Indonesia. Data was gathered through in-depth interviews and direct field observation. Written materials were also analyzed to understand the case. The results of this study show that the implementation of mediation in divorce during the Covid-19 pandemic in the Regency Religious Court was implemented in two stages, namely the stage before mediation and the implementation of mediation. In carrying out mediation, the caucus and virtual methods have been chosen as two methods of divorce mediating in the era of the Covid-19 pandemic. The two methods have transformed in response to the pandemic and new technological advancements. The transformation is considered relevant to Islamic law and principles. This means religious courts and Muslim societies are responsive to new technological development.

Advokat sebagai Mediator di Luar Pengadilan


 The implementation of mediation in court still seems formalistic, and can result in a slower case settlement process. Sometimes the decision also cannot produce a decision that benefits both parties and therefore the Advocate is present as a mediator outside the court who can be relied on and transparent. The method used in this research is the normative juridical method where the research is carried out based on the main legal material by examining the theories, concepts, legal principles and laws and regulations related to this research. , where research is reviewed from several bibliography and then analyzed carefully. Research shows that Advocates as Mediators outside the court are very good and are very much needed by the community because they can help the community in resolving disputes easily and without new conflicts.
 Keywords: Violation, Code Out of court, Advocate

The implementation of consensual tenet in modern civil procedure: A European approach of court-related amicable dispute resolution procedures

Background: This article explores the global changes in the orientation of civil procedure from competitive and adversarial towards more cooperative and consensual models. It aims to identify the reflection of mentioned tendencies in the valid legal regulation and practice of modern civil procedure. The consensual tenet in the civil process is analysed from the perspective of civil procedure goals, settlement principle, and case management as an effective tool for implementing the latter in practice. The authors explore the court-related amicable dispute resolution procedures to see the similarities and differences. Methods: Research commenced with a review of the existing scientific literature, a brief historical analysis, and a document analysis concerning changes in civil procedure orientation towards less competitive and more cooperation-grounded resolution of civil disputes. This research was followed by the comparative study of court-related amicable dispute resolution procedures with examples in particular legal jurisdictions like Austria, Lithuania, and Ukraine. Results and Conclusions: Vital changes in the perception of civil procedure regarding the widely accepted need to foster settlements in civil disputes, and an analysis of the most commonly used procedures as court conciliation and court mediation, were presented in this paper. The authors distinguish and analyse three court-related amicable dispute resolution procedures – conciliation, mediation, and the amicable conciliation process, emphasising their peculiarities and features. This research assists dispute resolution practitioners and researchers interested in better understanding how different court-related amicable dispute resolution procedures can be implemented in legal regulation and practice.

Advokat Sebagai Mediator di Luar Pengadilan

The implementation of mediation in court still seems formalistic, and can result in a slower case settlement process. Sometimes the decision also cannot produce a decision that benefits both parties and therefore the Advocate is present as a mediator outside the court who can be relied on and transparent. The method used in this research is the normative juridical method where the research is carried out based on the main legal material by examining the theories, concepts, legal principles and laws and regulations related to this research. , where research is reviewed from several bibliography and then analyzed carefully. Research shows that Advocates as Mediators outside the court are very good and are very much needed by the community because they can help the community in resolving disputes easily and without new conflicts.
 Keywords: Violation, Code Out of court, Advocate

Implementation of Mediation As Online Dispute Resolution (ODR) in Civil Jurisdiction

This writing aims to examine and analyze business/civil dispute resolution through online dispute resolution (ODR), institutionalization of mediation in civil cases in court, implementation of mediation as online dispute resolution (ODR) in civil courts, obstacles and legal implications for parties - the litigants. Mediation as an alternative dispute resolution mechanism outside the court has long been used in various business and civil cases, the environment, labor, land, housing, consumer disputes, and so on which is a manifestation of society's demand for fast, effective and efficient dispute resolution. The issuance of Perma Number 1 of 2016 concerning Mediation Procedures in Courts and Perma Number 3 of 2022 concerning Electronic Mediation in Courts further strengthens efforts to reconcile as stipulated in Article 130 HIR/154 Rbg. Even so, dispute resolution through mediation in court is actually a vulnerable mechanism, meaning that the possibility of failure is also very large. Anticipating this requires prerequisites that must be met, such as trust, willingness or willingness to waive some of the rights of each party to the dispute, and the availability of a professional mediator.

STRATEGI ADVOKASI MELALUI PROSES NONLITIGASI DALAM RANGKA PEMBAHARUAN PROSES PERADILAN DI INDONESIA

This study aims to explain the advocacy strategy through the non-litigation process in the context of reforming the judicial process in Indonesia. Mediation in court is an institution and empowerment of peace (court connected mediation) with a philosophical foundation that is Pancasila which is the basis of the Indonesian state, especially the fourth precept "Popularity led by Wisdom of Wisdom in deliberation/representation". In resolving disputes, there are several dispute resolution mechanisms, namely litigation, non-litigation, and advocacy. The method used in this research is literature study, with the type of qualitative descriptive research. The results explain that alternative efforts and strategies for resolving disputes with the Non-Litigation route can achieve a peace in accordance with the wishes of both parties through Mediation, Advocacy and negotiation. In its application there are two types of obstacles in non-litigation efforts to resolve land grabbing disputes, because mediation is not clearly regulated in Law no. 30 of 1999 concerning Artibrasion and Alternative Dispute Resolution. And the non-litigation efforts are legally less certain because their legality is also not explicitly regulated in Law no. 30 of 1999.

Mediasi Penal: Suatu Pilihan Konsep Perdamaian dalam Sistem Peradilan Pidana

This study analyzed the urgency and construction of penal mediation in the criminal justice system. The method used in this study was the normative juridical method with a doctrinal legal approach. The urgency of penal mediation in the criminal justice system was caused by the paradigm of retributive law enforcement, the limitations of criminal law, and the shift in the purpose of punishment. The construction of penal mediation in the criminal justice system was divided into two: penal mediation inside and outside the court. The settlement mechanism for penal mediation in court was carried out by giving authority to law enforcement officials to carry out the mediation process. The settlement mechanism for penal mediation outside the court could be left to the choice agreed upon by all parties involved in the settlement of criminal cases.This study analyzed the urgency and construction of penal mediation in the criminal justice system. The method used in this study was the normative juridical method with a doctrinal legal approach. The urgency of penal mediation in the criminal justice system was caused by the paradigm of retributive law enforcement, the limitations of criminal law, and the shift in the purpose of punishment. The construction of penal mediation in the criminal justice system was divided into two: penal mediation inside and outside the court. The settlement mechanism for penal mediation in court was carried out by giving authority to law enforcement officials to carry out the mediation process. The settlement mechanism for penal mediation outside the court could be left to the choice agreed upon by all parties involved in the settlement of criminal cases.

Business Dispute Settlement Through Mediation in State Courts and Arbitration Institutions

In social life, there are often differences in perceptions between humans, causing problems or disputes, whether minor or serious. Likewise in the relationship of economic activities or more commonly known as business relations. Not infrequently humans experience a clash and differences of opinion that lead to disputes. Various problems will always arise in business as long as humans run their business solely for profit, so there are often differences of opinion because the parties will not be harmed which will eventually lead to disputes. In the end, dispute resolution, especially business disputes, is often resolved through a trial in court through a lawsuit by one of the parties who feel aggrieved. However, what was expected from the settlement turned out to be unsatisfactory for the parties because the settlement through litigation sometimes took a long time to obtain legal certainty so that it actually harmed business people because of the loss of time, energy and materials. As an alternative to resolving business disputes, business actors have a tendency to avoid disputes in court and choose to use mediation or through arbitration institutions. This study will briefly describe the comparison of business dispute resolution through court mediation with settlement through arbitration institutions. The research was conducted through descriptive empirical legal research.

OPTIMALISASI PENGGUNAAN MEDIASI SEBAGAI SALAH SATU CARA PENYELESAIAN SENGKETA

The purpose of this study is to find out how to optimize the use of mediation as a way of resolving disputes, either through mediation in court or mediation outside the court. This research is a libraryresearch that uses data in the form of books, laws, articles, journals and other literature related to the title, while the technique and data collection is to collect various ideas, theories and concepts from various literatures that focus on whether the use of mediation as a way of resolving disputes can be said to be optimal or not good, so it is necessary to add a legal basis or legislation, especially mediation outside the court to be more optimal. The approach method used in this research is the statutory approach and the conceptual approach. The results showed that the optimization of dispute resolution through mediation was not fully optimal due to its low success rate. This is due to obstacles, both in court and out of court mediation

Mediation in Household Dispute Reconciliation: Prospects and Challenge

Domestic disputes are disputes within the family environment. Family disputes are personal disputes that do not need to be exposed. The settlement of household disputes must prioritize the restoration of the situation to maintain good relations in the family order. Mediation is an effective way to resolve household disputes because mediation is a peaceful dispute resolution that accommodates common interests, ensures the confidentiality of both parties, is cooperative, consensual and a win-win solution. However, although mediation is an effective method and is a method that is guided by the Qur'an (Qur'an 4:35), in reality, mediation has not become the main choice. The method used is a descriptive analysis method with a normative juridical approach. Observations show that mediation is an ideal alternative for resolving household disputes because it prioritizes peace and restoration of good relations (reconciliation) in family ties. There are several ways to make mediation in household dispute resolution effective, including not violating the general principles of ADR (Alternative Dispute Resolution), strengthening the role/function of mediators and maximizing the skills of mediators. The challenges of mediation as an alternative for resolving household disputes are; socialization of mediation institutions has not been optimal, there is still a lack of certified mediators, not yet qualified mediator skills/skills, the level of conflict is quite severe, there is no good faith, peace agreements do not have legal force, mediation in court is not based on volunteerism but based on procedural lawsuits. Thus, there needs to be a concrete effort to make mediation a reconciliation of household disputes, including from the parties, mediators and regulations on mediation.

Tinjauan Hukum Islam Tentang Penempatan Lembaga Mediasi Di Pengadilan Agama

This study aims to determine the review of Islamic law regarding the placement of mediation institutions in Religious Courts. This research is library research using a normative juridical approach and a historical approach. Data collection techniques are carried out by researching library materials (library research). With the object of all texts or data in the form of ideas about mediation in the form of journals, books, and other legal sources related to the object of research, in the form of primary legal materials, secondary legal materials, and tertiary legal materials. The results show that the placement of mediation in the religious court is not appropriate because the party who registers the lawsuit to the court essentially does not want to mediate but wants the dispute to be decided by the judge. This is what causes the success rate of mediation to be not optimal. Mediation should be placed outside the court through an independent institution such as BP4 or other institutions that are believed to be a way of peace when a dispute occurs.

Divorce Mediation at Religious Courts in Pasangkayu during the Covid-19 Pandemic: Socio-Juridical Analysis

This article describes the application of divorce mediation and explains the factors that influence mediation practices during the Covid-19 pandemic at the Religious Courts in Pasangkayu. As part of the alternative settlement of disputed cases, mediation has changed its implementation, including in the practice of law in religious courts. This study uses a socio-juridical approach to examine qualitative data obtained from field research through observation, in-depth interviews, and documentation. This study presents three conclusions. First, divorce mediation includes pre-mediation, which is carried out privately, and its implementation is based on the situation. Second, several enabling and inhibiting factors influence the practice of meditation. Third, from a socio-juridical perspective, mediation is a construction guided by the principle of agreement carried out through deliberation and consultation regarding disputes. In addition to adhering to a positive legal system, mediation in religious courts in Indonesia attaches to the Regulation of the Minister of Religious Affairs Number 1 of 2006 and the process of judging (tahkim) procedure in Islamic law. The influence of local customs and culture on the implementation of mediation in religious courts is not by the objectives of Islamic law and positive law, which is oriented toward the peaceful settlement of disputes and good faith.

“We make new families:” findings from a family court mediation study

AbstractMediation was brought into family court cases as a divorce litigation alternative. Today, parents are not only encouraged but mandated across most U.S. states to consider mediation before further court action can be taken. Research has not kept up with understanding how publicly mandated and subsidized mediation services become part of court cases and possible case resolution. This article reviews how mediation has evolved from outside alternative to family court “workhorse” within a family dispute resolution paradigm centered on shared parenting as in the best interest of children. Research results from a family court mediation program are presented to highlight how parents encountered and responded to mediation as an embedded part of today's family dispute resolution paradigm/court system. Especially in cases that keep coming back to court, family dispute resolution has become a means of “making family” as much as supporting family separation. Implications for practice include limitations of a mediation service as provided in an under‐resourced court and ultimate reliance upon parents to uphold the best interest standard through ongoing co‐parenting interactions.

Implementation of conciliation proceedings in Vietnam

The adoption in Vietnam in 2020 of the "Law on mediation and negotiations in court" was a significant event, indicating the preservation and development of the legal and cultural traditions of the country, as well as the reasonable use of the experience of other states in the field of reconciliation of disputing parties. The named Law has a wide range of application. The purpose of the study is that the author gives an overview of the conciliation procedure in the Vietnamese courts, and carefully analyses individual issues, especially the problems arising from the lack of a unified approach to the procedure for recognizing the results of the conciliation procedure by court. The methodological basis of the study is the methods of consistency, analysis, and synthesis. The authors conclude that the introduction of mediation in court has brought many positive results: disputes and lawsuits have been successfully resolved and negotiated. The article provides a general overview of the mediation procedure in the Vietnamese court, and carefully analyses individual problems arising from the lack of a unified approach to the procedure for recognizing the results of the conciliation process by court.

Legal Position Open and Closed Traditional Court Decisions Relating to Indigenous Land Disputes in Malamoi Sorong Region in Positive Law (Case Study Between the Clan Malibela Klawalu Against the Clan Malibela Klaifi)

The type of research used in this research is normative legal research. Whereas in civil justice system, there are norms and principles that provide space for practice of customary justice which has a combination of characteristics as informal justice, communal justice, alternative dispute resolution, and simplified court regardless of inconsistency and inconsistency of laws and regulations regarding the existence customary justice system in Indonesian judicial system that applies positively. The influence of the position of customary courts in the civil justice system is especially apparent in the functional relationship between customary court decisions and the settlement of civil cases in court. Therefore, to accommodate the existence of customary court decisions, in practice judges will optimize the mechanisms regulated in the civil justice system such as through mediation in court.