Litigation is the process of resolving a legal dispute through court intervention. The entire litigation process involves gathering information and/or evidence related to the disputed dispute to avoid unwanted problems arising in the future. For legal experts, the litigation process is generally known as “ultimum remedium”; it’s the last option to be taken when settling disputes between one and the other. The outcome of the litigation has binding legal force (inkracht van gewijsde) against the parties involved in the dispute, and it is no longer subject to appeal.
Litigation is defined by the Black’s Law Dictionary as “a judicial controversy. A contest in a court of justice, for the purpose of enforcing a right.” whereas according to the Cornell Law School’s Legal Information Institute, litigation refers to “the process of resolving disputes by filing or answering a complaint through the public court system.” When it comes to a litigation process, some prerequisites must be fulfilled, and steps to be taken to achieve the goal.
Specifically in Indonesia, the aforementioned steps are as follows:
On a whole, legal proceedings refer to an activity that seeks to invoke the power of a tribunal to enforce a law. In itself, legal proceedings may be defined as “proceedings brought by or at the instigation of a public authority, and an appeal against the decision of a court or tribunal.” It is generally characterized by an orderly process in which participants or their representatives can present evidence in support of their claims and argue in favour of particular interpretations of the law, after which a judge, jury, or other triers of fact decides the factual and legal issues.
Then, what kind of cases can be solved through litigation? Litigation has a broad scope which includes but is not limited to:
An appeal can also be submitted to the higher court if the concerned parties (one of them, but it’s also possible for both) are not satisfied with the verdict given by the district court. An appeal court will, as a general rule, not interfere with findings of fact made by the first judge (because that judge had the opportunity to observe the witnesses and make decisions about their credibility), but it could disagree with the judge’s legal conclusions and either overturn or vary the original verdict.
Dispute settlement does not always have to be resolved through litigation. The government of Indonesia also acknowledged the way of dispute resolution through non-litigation means. Before the court handles a case, the court commonly advises the affected parties to try finding a resolution through mediation. If the mediation proves unsuccessful, it will be handled by the court. Lawsuits, in general, may cause damage to relationships, tarnish reputations, and not to mention eat up a considerable amount of money; even so, at times, it’s just unavoidable.
Concerning costs, the cost of lawyers and other direct costs get the most attention because they’re easy to gauge and measure. But other costs, such as indirect business costs for litigation, the cost of diverting key personnel from productive activities, for example, or the cost of destroying a profitable relationship with a former business ally, are perhaps equally important – or in other words, things related to immaterial loss. From the company’s perspective, they may be more important.
The essence of litigation is that lawyers for opposing parties are responsible for presenting every piece of evidence and making every legal argument that might benefit their clients. The litigation system as a whole is designed to leave no stone unturned in the search for relevant evidence. Even so, this system is also not the most practical. Firstly, because it’s not always the effective way to resolve some kinds of disputes, and secondly, not everyone can afford the entirety of the litigation process.
As mentioned above, litigation is a process that should be considered the last option to resolve a dispute (ultimum remedium). Not to mention that due to the sheer volume of cases that the courts were seeing, the process became very slow and meant individuals could be waiting months, even years, to have their case seen before a judge and a resolution provided. This length of time only increased more if an individual was unhappy with the judgment and wished to appeal the decision. The time element of litigation became very unpredictable, and some might argue that this significantly restricted access to justice.
To overcome this, a system of alternative dispute resolution has also been acknowledged in Indonesia.
The Black Law Dictionary defines alternative dispute resolution (ADR) as “When a resolution to a dispute is sought out of court. The processes of arbitration, conciliation, and possession proceedings are alternates for the court system. This is a voluntary choice, and a 3rd party is used to keep things neutral.” whereas Cornell Law School defines it as “any method of resolving disputes without litigation.”
With the promulgation of Law No. 30 of 1999 re Arbitration and Alternative Dispute Resolution, Indonesia has acknowledged several forms of alternative dispute resolution, such as mediation, consultation, negotiation, conciliation, or expert determination:
Alternative dispute resolution also has its advantages compared to the process of litigation, such as the voluntary nature of the process because there’s no element of coercion, fast procedures, non-judicial decisions, confidential procedures, flexibility in determining the prerequisites of the resolution, saving time and costs, and also the high possibility of carrying out agreements while still maintaining working relationships.
Our experienced solicitors are well-versed in both areas of litigation and alternative dispute resolution. To provide the best settlement by informing and suggesting the best possible option between litigation and alternative dispute resolution, we go above and beyond to assist you in your endeavours.
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