Problems and Prospects of Mediation in the Justice System in

Indonesia

Ramdani Wahyu Sururie, Oyo Sunaryo Mukhlas, Juhaya S. Praja, Dudang Gojali and Muhammad

Burhanudin

UIN Sunan Gunung Djati Bandung, Jl. A. H. Nasution 105, Bandung, Indonesia

ramdani.wahyu@uinsgd.ac.id

Keywords: Supreme court, court, mediator, mediator judge.

Abstract: Conceptually, mediation is believed to be one model of court settlement in a fast, cheap and beneficial way

for both parties. However, based on the annual report released by the Religious Courts and the District Court

in several major cities in Indonesia, the success rate of mediation is still low, while cases that fail to be

mediated are still high, resulting in conflict in the Court. This study aims to describe and evaluate the root of

the problem of mediation success and failure in the Court, and efforts that have been made by the Courts in

order to improve the success of mediation and examine the future of mediation within the judicial system in

Indonesia. The research method used was formative evaluation method. The results of this study concluded

that the success and failure of mediation in court was caused by the disputing parties, advocates, mediators

and means. Efforts that are being made to improve the success of mediation are the provision of rewards for

mediators, improving the mediation regulation in the form of Supreme Court rulings along with their technical

guidance, appointing the court as a mediation pilot project, conducting mediator training for judges and for

prospective judges, building cooperation with BP4 (an advisory board that guides and preserves marriage);

and the prospect of mediation as an alternative to dispute resolution in court which still gives hope in light of

the changing success rate of each year's mediation from each court. Thus, this study reinforces the theory of

law enforcement that the mediating and supporting elements of mediation in court are caused by four

elements, namely, elements of regulation, disputants, mediators, and infrastructure and facilities.

1 INTRODUCTION

Mediation is one of the dispute resolution efforts of

the disputing parties by presenting an independent

third party to act as mediator. Mediation can be the

best solution to resolve disputes, including in

business disputes (Elena Ilie, 2015). According to the

Supreme Court Regulation (PERMA) No. 1 of 2016,

mediation is a means of dispute resolution through the

negotiation process to obtain agreement of the Parties

with the assistance of the Mediator

As one of the out-of-court dispute settlement

processes, dispute resolution through mediation is

now practiced in an integrated manner with the

judicial process. It means that the process of

mediation in the judicial system in Indonesia becomes

a must before the examination of the lawsuit case.

The mediation process in the courts in Indonesia

is conducted after the registration of the case and the

trial has been attended by the parties. The mediator is

determined by the judges when the parties are present

at the first hearing.

This mediation law is initiated through Article

154 of the Regulations on the Procedural Laws for the

Outside of Java and Madura and Article 130 of the

updated Indonesian Regulation. The article

encourages parties to pursue a process of peace that

can be utilized through Mediation by integrating it

into court procedure in court. The law continues to

improve both in the process and its implementation

by issuing Supreme Court Regulation Number 2 Year

2003 and Supreme Court Regulation Number 1 Year

2008 on Mediation Procedure in Court. Although

regulations have been regulated about mediation, the

implementation stage is still not effective. According

to Bahrul Ulum, the provision of mediation in the

Supreme Court Regulation No. 1 of 2008 on

Mediation Procedures in Courts is still considered

weak (Ulum, Harun, & Faizah, 2016). Thus, the

Supreme Court revised Supreme Court Regulation

Number 1 of 2008 on Mediation Procedure in Court

Sururie, R., Mukhlas, O., Praja, J., Gojali, D. and Burhanudin, M.

Problems and Prospects of Mediation in the Justice System in Indonesia.

In Proceedings of the 2nd International Conference on Sociology Education (ICSE 2017) - Volume 1, pages 591-596

ISBN: 978-989-758-316-2

591

by issuing Supreme Court Regulation Number 1 Year

2016 on Mediation Procedure in Court.

Although the regulation is sufficient to support

mediation in court, its implementation has not been

maximally done either by the District Court or by the

Religious Courts. For example, based on data

obtained in 2011, mediation in Religious Courts was

less than 20% (Labuanbajo, 2011). Table 1 shows the

successful mediation rate in 2011.

Table 1: Successful mediation in 2011.

Religious

Court (PTA)

location

Mediated

cases

Successful

mediation

Percentage

(%)

PTA

Surabaya

22,011

1,404

6.38%

PTA

Semarang

12,084

316

2.62%

PTA

Bandung

8,117

126

1.56%

PTA

Makassar

2,427

113

4.63%

PTA Jakarta

3,147

112

3.56%

Another example showing the lack of mediation

success in the courts in Indonesia is based on data

obtained from the Religious Court (PA)

Sungguminmin, South Sulawesi Province

(Sungguminasa, 2015).

Figure 1: Annual Statistics of Mediation process.

Based on table 1 and figure 1 above, the success

rate of mediation is still low, while cases that fail to

be mediated are still high so that cases end with

conflicts resolved through a trial process that takes a

long time to be completed.

This study discussed the root causes of the

problems and success of mediation in the courts, the

efforts that have been made by religious and state

courts in order to improve the success of mediation,

as well as the future of mediation within the judicial

system in Indonesia.

The root of the success and failure of mediation in

the Religious Courts and the District Court depends

on the four elements, namely mediators, legal

materials (legal instruments), the parties to the

dispute, and facilities and infrastructure. The

relationship of the four elements is as follows:

Note: = Simultaneous relationship

Figure 2: The relationship among mediation elements.

Based on figure 2 above, the framework of

thinking used is as follows: First, the system is a

whole and an integrated entity, consisting of several

elements, namely legal material, mediators, the

parties to the dispute, and facilities.

Second, the elements are mutually related to one

another. If one element is less supportive, it will affect

other elements; and thirdly, the four elements have

equal opportunities to support and obstruct law

enforcement and justice.

A research conducted in Religious Court in

Jakarta concludes that the factors that constrain the

settlement of civil disputes through mediation

institutions are a) lack of goodwill from the parties to

the dispute, b) more formality peace suggestions by

judges, c) limited mediator expertise, d) lack of

administrative coordination, and e) limited facilities

and infrastructure supporting the implementation of

the mediation process (Anshori, 2013).

2 METHOD

This study is an empirical study related to problems

in the field that rely on data from mediators and the

parties studied (Arikunto, 2006). The study used a

qualitative approach that is by matching empirical

reality with valid theory by using descriptive method

and formative evaluation. The method of formative

evaluation research means that this method is used to

assess the elements of support and inhibition of

success and failure of mediation in the courts in

Facilities

and

Infrastructur

Legal

Instrument

Mediator

Disputed

Parties

MEDIATI

ICSE 2017 - 2nd International Conference on Sociology Education

592

Indonesia. The main function of evaluation in this

case is to provide useful information for the decision

maker to determine the policy to be taken based on

the evaluation that has been done.

The data in the study were obtained from the

primary and secondary data sources. Primary data is

the result of interviews with the parties involved in

mediation in the Courts and legislation closely related

to the mediation process and the files of mediation

recapitulation cases in every District Court and

Religious Court. Meanwhile, the secondary data is the

result of research to find the reference knowledge

about the key concepts in research that will be done

which can also be books/research results, seminar

papers, articles from websites, legal dictionaries, and

others.

The data analyzed in this study covers subjects

closely related to the causes of the success and failure

of mediation in the courts, the efforts that have been

made by the Religious Courts and the District Courts

in order to improve the success of mediation, as well

as the future of mediation in the judicial system in

Indonesia.

The data collection of this research was done

through in-depth interview to informants or

respondents involved in mediation process in District

Court and Religious Court such as to mediator, judge,

and disputed party or advocate; Observations were

made to observe directly the implementation of

mediation, from the process, the implementation and

the settlement of cases through mediation; Literature

Studies were conducted by studying and reviewing

books, theories or other types of reading that have to

do with the mediation problem under investigation.

The data are analyzed through the following

stages: 1) The collected data is selected according to

data collection techniques; 2) the basic theories or

concepts that support the implementation of

mediation in court are described; and 3) data were

analyzed by taking into account the theories or

concepts, so that the answers to the research problem

are obtained.

3 RESULTS AND DISCUSSION

3.1 Mediation Model in the Judicial

System in Indonesia

Lawrence Boulle mentioned there are four mediation

models, namely settlement mediation, facilitative

mediation, transformative mediation and evaluative

mediation (Bandung, 2015). First, the Settlement

mediation is known as mediation of compromise with

its ultimate aim of encouraging the realization of a

compromise of the demands of both parties in dispute.

Secondly, facilitative mediation is often called

interest-based and problem-solving mediation aimed

at avoiding disputing parties from their positions and

negotiating the needs and interests of stakeholders

from their legal rights in a rigid way (Stitt, 2004).

Third is transformative mediation, also known as

therapeutic mediation and reconciliation. The media

model emphasizes the search for the underlying

causes of problems among the disputing parties, with

consideration to improve relations among them

through recognition and empowerment as the basis

for conflict resolution of existing disputes (Bush &

Folger, 2004)

Fourth, the evaluative mediation, also known as

normative mediation, is a mediation model aimed at

achieving agreement on the legal rights of the

disputing parties in the area anticipated by the courts

(Stitt, 2004).

Of the four types of mediation mentioned above,

mediation in the courts applied in the judicial system

in Indonesia is more to settlement mediation because

in mediation conducted by the court aims to

encourage the compromise of the demands of both

parties in dispute.

3.2 Supporting and Inhibiting Factors

to the Success and Failure of

Mediation in Courts

3.2.1 Legal Material

The legal matters of mediation in the legal system in

Indonesia are as follows: First, article 130 HIR

(Article 154 RBg./article 31 Rv); second, Article 39

of Law Number 1 Year 1974, Article 65 of Law

Number 3 Year 2006, Article 115, 131 Paragraph (2),

143 Paragraphs (1) and (2), and Article 144

Compilation of Islamic Laws and Article 32

Government Regulation (PP) Number 9 Year 1975;

third, the Supreme Court Circular (SEMA) Number 1

of 2002 on the Empowerment of Courts of First

Instance Applying the Peace Institution; the four

Supreme Court Regulations Number 2 Year 2003 and

Supreme Court Regulation (PERMA) Number 1 Year

2016 on Mediation Procedures in Courts..

Based on the legal material, the rules of mediation

are sufficient to support the mediation in court, so that

the existence of legal materials about this mediation

can be said as a supporting element of the success of

mediation in court.

Problems and Prospects of Mediation in the Justice System in Indonesia

593

3.2.2 Mediator

The main requirement of a mediator is the ability to

invite and convince the dispute party to find the best

way to resolve their dispute (expertise in mediation

techniques) (Sugiatminingsih, 2009). The ability to

reconcile the parties to the dispute is indispensable.

The ability of the mediator lies in the mediator's

communication ability with the parties to be perfect

(Răzvan Lucian Andronic, 2013).

Mediators in court mediation can be categorized

into two, i.e., mediators from judges or often referred

to mediator judges, and mediators from non-judge

who are certified by the Supreme Court obtained

through mediator training. In the judicial system in

Indonesia, certified mediators are still very few in

number and mediators from non-judges (certified

mediators) are rarely the choice of the disputing

parties because there is a charge to pay by the parties

(Saifullah, 2015).

In addition, the ability or skill mediator in

mediation is still considered less. Mediators have

insufficient knowledge as in the case of sharia

economic disputes. This is the obstacle to successful

mediation in court (Ramdani, 2017). Based on

previous research, this mediator is often an obstacle

to successful mediation in court because mediation is

more of a formality only.

3.2.3 Disputing Parties

As one form of dispute resolution, mediation can be

viewed as a social institution, not viewed as a legal

institution (Sugiatminingsih, 2009). Thus, the

development or success of mediation depends on the

social attitudes of the people in this case are the

parties to the dispute.

This element can also be a factor inhibiting or

supporting the success of mediation in the Court.

Most disputants consider that the mediation process

in court is a formal requirement of dispute resolution

in court, so that in the mediation process is not

undertaken seriously (Bintoro, 2016).

In order for mediation to succeed, the disputants

must have a strong desire that the case be resolved

through mediation in court (Ahmad, 2014). The

attorneys of the parties should be more concerned

with the interests of his clients to help to reconcile

rather than inhibit the result of mediation

(Abdurrohman, 2017).

This is also in line with previous research which

states that one of the causes of the failure of mediation

is from the advocates who counter the mediation

process. They consider that running the mediation

process is merely a formality. This is because the

longer the advocate becomes attorney of his clients,

the more income they get (Arief, 2016).

3.2.4 Facilities and Infrastructure

The element of mediation facilities and infrastructure

is necessary to ensure the success of mediation in

court. As mediation facilities and infrastructure are

sufficient, many cases can be successfully mediated.

Mediation facilities and infrastructure of the

judicial system in Indonesia still do not meet the

criteria. It is necessary that the mediation room should

be comfortable. However, in fact, the place of

mediation in the courts of Indonesia is located near

the courts so it is uncomfortable. The limited facilities

and infrastructure of mediation are also found in the

Central Jakarta District Court, where it should be an

example for other courts throughout Indonesia

(Anshori, 2013).

Therefore, the elements of these facilities and

infrastructures actually become the barrier of

mediation. Facilities and infrastructure should receive

attention, especially the Supreme Court which must

standardize the availability of mediation facilities and

infrastructure in the courts.

The findings of the four aspects are shown in

Table 2.

Table 2: Supporting and inhibiting elements of mediation in

the Indonesian judicial system.

Elements

Supporting

Inhibiting

Legal Materials

Mediator

Disputing

Parties

Facilities and

Infrastructure

Table 2 shows that three aspects are not

supporting the success of mediation in the court.

Thus, it is clear that the success of mediation is not

yet effective,

3.3 The Efforts of Courts in Enhancing

the Success of Mediation

Some of the efforts being made by the Supreme Court

to support the success of the mediation are 1) the

awarding of awards to mediators who have succeeded

in reconciling the parties during the mediation

process. This reward is not in the form of incentives,

but in the form of job placement for mediators from

the judges (Agung, 2013). This reward is expected to

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encourage mediators to be more serious in reconciling

the parties, especially the non-judicial mediators

(certified mediators). The provision of mediation

reward can also be optimal if the mediation fee

charged to the parties is set in general (Doornik,

2014); 2) Creating a mediation pilot project in

Religious Courts and District Courts. This means that

the Supreme Court will select judicial courts for

mediation; 3) Conducting training of certified

mediators; 4) Doing a comparative study to

developed countries; 5) Having cooperation with BP4

to provide a peacemaker; 6) Certification training for

judge mediator.

3.4 The Future of Mediation in the

Judicial System in Indonesia

As part of an alternative dispute settlement, mediation

in the courts still gives some hopes. Through

mediation, problems can be solved by a win-win

solution, meaning that it can provide justice for the

disputing parties. Therefore, the most important thing

now is how the efforts of the Supreme Court as an

institution that oversees the courts in Indonesia are

able to encourage the success of mediation in the

courts.

The prospect of mediation in the courts will be

stronger if the current mediating jurisdiction of

mediation is upgraded to a kind of legislation. In

addition, policies established by the Supreme Court

can further strengthen the position and benefits of

mediation in the courts through strengthening the

training of certified judicial mediators.

In addition, the role of the community through

multi-door mediation needs to be strengthened. The

Supreme Court can open the door of mediation

outside the court, for example through optimizing the

role of BP4 and establishing mediation institutions

accredited by the Supreme Court. Islamic Higher

Education, especially the Faculty of Shari'ah and

Law can be appointed as a competent institution to

handle mediation, both as mediator and training

organizer. The mediation institution can also be in the

pesantren. The scholars and Islamic leaders (kyai)

may act as mediators for parties with civil disputes.

The involvement of scholars and kiyai became

mediators based on the opinions of the scholars of

interpretation which requires that a peacemaker

(mushlih, hakam and mediator) has the requirements

of khauf, taqwa, faqih and understand the problem

being disputed. The kiyai and ulama are seen as those

who possess the qualifications and the charisma that

is able to influence the disputing parties.

The idea of multi-doors mediation as mentioned

above can only occur by changing the Supreme

Court's rules on mediation or through other policies.

Thus, the success of mediated cases will increase in

the future.

4 CONCLUSIONS

The study concludes that some of the points that

support and inhibit the success and failure of

mediation in court are determined by the factors of

law, mediators, parties and advocates, and mediation

support facilities. Second, the Supreme Court

provides rewards to mediators who have succeeded in

reconciling the parties; improve regulation of

mediation in the form of regulations, appoint court as

mediation pilot project, conduct mediator training for

judges and for candidate judges, in cooperation with

BP4; and thirdly, the mediation in the court still gives

hope because the superiority of the settlement of the

case through this mediation is done in a win-win

solution (equally win), so that it can produce legal

justice, legal certainty, and legal benefit.

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