LITIGATION

Category: Legal Services
Written by David J. O. Tuhusula on 27/09/2022
The author’s views are entirely their own and may not always reflect the views of Putranto Alliance.

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.

Stages of litigation

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:

  1. Case Registration

    Before it can be registered, the party planning to file a claim or a lawsuit must ensure that all of the necessary prerequisites have been fulfilled. For example, before a dispute is handled in the District Court (Pengadilan Umum), the court would suggest mediation between the affected parties. In criminal cases, case registration is carried out by the prosecutor’s office based on cases that the police have investigated. As for civil cases, the plaintiff, through his attorney, files a lawsuit addressed to the Chief Justice of the Court. Usually, this case registration is accompanied by a letter of application/lawsuit and a legalized power of attorney (if the plaintiff uses the services of a lawyer). After registering the lawsuit, the plaintiff awaits the approval of the Chief Justice.

  2. Case Fee Payment

    For criminal cases, the cost of settling litigation cases is usually already paid for by the government because the plaintiff is the prosecutor. Whereas in civil cases, trial costs are borne by the plaintiff. If you use the services of a lawyer, this fee usually includes the legal advisory rental fee that has been paid. Payment of court fees can only be made if the Chief Justice has approved the lawsuit. Usually, the plaintiff receives proof of receipt of payment.

  3. Waiting for the Summons

    In criminal cases, the summons is usually scheduled by the prosecutor’s office based on the availability of the judge who handles the case. While waiting for the summons, the suspect must stay in prison or be a city prisoner depending on the agreement and the case size. As for civil cases, a summons is issued by the court. When attending the trial, the plaintiff is accompanied by his attorney and follows the litigation process according to the flow determined and recognized by the Indonesian legal system.

  4. Mediation

    In some civil cases, before a trial is held, non-litigation efforts are carried out first, with one of them being mediation, following the Supreme Court Regulation No. 1 of 2008 concerning Mediation Procedure in Court. Mediation is an effort to resolve cases involving third parties with the position of the third party or mediator being neutral and impartial. The mediator is tasked with bridging negotiations between the plaintiff and the defendant to reach an agreement agreed upon by both. Only if mediation attempts are unsuccessful will the dispute be settled through trial in court.

  5. Trials, Court Decisions, Appeals, and Enforcement

    After a series of trials, each case settlement process through litigation arrives at a verdict hearing. At the verdict hearing, the judge issued the best decision based on various considerations to settle the case. These considerations include the statements of witnesses, plaintiffs, attorneys, expert witnesses (if needed), and the legal basis and legislation in force in Indonesia. If the plaintiff or defendant objects to the verdict, state law allows both parties to appeal to a court of a higher level. If the verdict is not appealed, the decision is declared to have permanent legal force (inkracht), where the contents of the verdict must be implemented for every party involved. Suppose the verdict already has permanent legal force, yet the parties involved decide not to implement or neglect to implement it. In that case, a request for verdict execution can be submitted to the relevant court to implement the verdict immediately.

LITIGATION AS A PART OF LEGAL PROCEEDINGS

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:

  • Commercial disputes such as claims for breach of contract damaged goods, or recovery of debts;
  • Matrimonial matters such as determining the extent of a divorce action;
  • Claims against the state, such as proposing a judicial review;
  • Personal injury claims such as monetary claims resulting from an accident; and
  • Employment disputes such as a claim over wrongful dismissal.

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.

LITIGATION AS A NECESSITY

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.

ALTERNATIVE DISPUTE RESOLUTION

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:

  1. Mediation

    Mediation is arguably the most straightforward as it simply involves direct communication between the disputing representatives to resolve.

  2. Consultation

    The consultant does not have a dominant role in this dispute resolution, as they merely provide an opinion, as requested by the client. The final decision regarding the dispute resolution will be decided and taken by the parties themselves. However, the consultant may sometimes be allowed to determine the prerequisites of the settlement desired by the conflicting parties.

  3. Negotiation

    Through the negotiation process, the conflicting parties may re-explore their rights and obligations in a way that mutually benefits them by releasing and/or granting concessions to certain rights based on the principle of reciprocity. After an agreement has been reached between conflicting parties, it will be put into writing to be signed and implemented by the affected parties.

  4. Conciliation

    The method of conciliation is similar to mediation, though with a more interventionist approach. It is carried out through a person or several persons or bodies (conciliation commission), with a conciliator being present and actively trying to promote ways of settlement and suggesting possible options or areas of the potential concession.

  5. Expert Determination

    This alternative dispute resolution is ideally suited to disputes and matters of valuation and/or primarily dependent on technical issues. For example, does the computer match the specification is the malfunction due to a design or a manufacturing fault, valuations of shares, rent reviews, and contract performance matters? It can also be used in many other areas such as insurance wording disputes, sale of goods disputes, fitness for purpose, and boundary disputes.

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.

HOW CAN WE HELP

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.

REFERENCES

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