Category: Legal Services
Written by Detty Amelinda Shantika Putri on 18/09/2022
The author’s views are entirely their own and may not always reflect the views of Putranto Alliance.
Mediation has been recognized as one of a few alternative dispute resolutions. It is a way to resolve a dispute before it is processed into court and negotiated with the help of a mediator. Mediation as an alternative dispute resolution also has more benefits than the court for the disputing parties, including time and cheaper cost.
As an initial step, disputes in a business environment can be settled using mediation. Mediation is a way of resolving disputes through negotiations to obtain the parties’ agreement with the mediator’s assistance, according to the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of the year 2016 (Mediation PERMA).
The mediation needs the presence of a neutral third party, a Mediator. A mediator can assist the disputing parties with the mediation so it can be held efficiently and effectively and obtain a mutually satisfactory and fair settlement. In addition, a mediator has various functions ranging from holding meetings, leading negotiations, taking notes, making agendas, proposing settlements, maintaining order in negotiations, to assisting the parties in drafting agreements.
Businesses need mediation to solve disputes because mediation is one of the dispute resolution alternatives to help the disputing parties to reach a win-win solution. Mediation also helps establish good relations between the parties who previously had a dispute without the need to solve the dispute in court. Mediation also provides an arrangement between the disputing parties to maintain good relations since mediation resolves problems efficiently and effectively with the help of a neutral mediator. The mediator who presents also has to facilitate, providing a few options for mutual advantage between the parties.
The mediator ensures that the parties can control the outcome as negotiated. In this case, the disputing parties can settle their conflicts and set their interests and needs with each party’s approval. In addition, the agreement of the disputing parties is also based on equality between the parties. If both parties use law court to settle their disputes, one of the parties will be harmed since the other party’s wish will be granted, while the other’s don’t. And so, the dispute can be a so-called win-lose situation without the parties’ control of the outcome since the judge is making the decision of the court. And so, the relationship between the parties ends.
There are several reasons why mediation is an alternative dispute resolution to resolve problems between the disputing parties. It has the potential to resolve disputes more economically, both from the point of view of cost and time. Since the main purpose of business is getting as much profit as possible, resolving the dispute by taking it to court can be considered less effective for the disputing parties. Taking the dispute to solve in court takes a long time to solve the dispute and also costs expensive.
In addition, there is also a burden that affects the parties’ business activities. The business activities will be focused on the dispute, too. Hence, it makes the business activity less effective than it should be. That said, mediation is the correct answer for the disputing parties. The disputing parties must negotiate within the time limit in the mediation session. So it brings effectiveness in the business activity to obtain satisfying results and a settlement between the disputing parties.
Negotiation is a two-way communication to reach an agreement. As time passes, negotiation is used as an alternative for resolving disputes outside the court without involving third parties, and only the conflicting parties should participate in the negotiation. Negotiation can be seen as similar to mediation, but the difference between mediation and negotiation is that in negotiation, the negotiators themselves are the conflicting parties. It also focuses on the interests of the conflicting parties. In negotiations, the parties are not interested in maintaining their will to defeat the other party since negotiation is for internal purposes only. The conflicting parties look at various answer possibilities and alternative solutions since negotiation is the art of solving problems between the conflicting parties (joint problem solving). While on the other side, mediation is a negotiation followed up when the negotiation stage fails. It is also assisted by a neutral third party who does not have the authority to decide and aims to resolve the dispute between the parties based on a win-win solution.
There are 4 (four) stages of negotiation that the conflicting parties need to go through. The four stages are:
The mediation steps consist of the Pre-mediation Stage and the Mediation Stage. Based on the Mediation PERMA (Peraturan Mahkamah Agung / Supreme Court Rules), the Pre-mediation stages are:
Following the Mediation PERMA, the stages of the Mediation Process are:
There are 5 (five) principles of mediation. These 5 principles of mediation are also known as the five basic philosophies. The five principles are confidentiality, volunteering, empowerment, neutrality, and the unique solution. The explanation of each principle are:
Here in Putranto Alliance, with a certified mediator, we can help you to deal with any dispute, especially in mediation. We can represent you in a negotiation or act as a neutral party to help you find an amicable solution to the dispute. Our skilled and certified team is ready to assist you in mediation and efficiently obtain a win-win solution between the parties.
Regulation of the Supreme Court of the Republic of Indonesia Number 1 of the year 2016, regarding mediation
Law Number 30 of 1999, regarding Alternative Dispute Resolution
The advantage of using mediation is that the process of the mediation process is faster than solving the dispute in court. It cuts the cost and also time.
The disputing parties may choose a mediator with a mediator certificate within 1 (one) day. The judge chooses the mediator when the party fails to choose a mediator.
When a mediation session fails to reach an agreement between the disputing parties, the mediator conveys a written notification to the judge. Hence, the trial continues in court.
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