According to Article 1 paragraph 1 of Perma 1/2016, mediation is a method of dispute resolution through a negotiation process to reach an agreement between the parties with the assistance of a mediator. In short, the mediator’s job in conflict resolution is to reach an agreement between the parties during mediation.
According to Article 1 paragraph 2 of Perma 1/2016, a mediator is a judge or other party with a mediator certificate as a neutral party who assists the parties in the negotiation process to find various ways to resolve disputes without deciding or imposing a settlement.
There is an important difference between the roles of a mediator and an advocate. The mediator helps the parties reach an amicable agreement and act neutral. Furthermore, the mediator has roles and responsibilities towards the parties he/she assists and towards his/her profession, adhering to principles such as neutrality, confidentiality (confidentiality of the process), independence, and avoiding conflicts of interest. Meanwhile, an advocate is a legal representative of one party who tries to fight for the interests of his client.
Article 1 paragraph 1 of the Advocate Law
An advocate is a person whose profession is to provide legal services, both inside and outside the court who meets the requirements under the provisions of this Law.
Article 1 letter a of the Indonesian Advocates Code of Ethics (“KEAI”)
An advocate is a person who practices providing legal services, both inside and outside the Court who meets the requirements based on the applicable Law, either as an Advocate, Lawyer, Legal Counsel, Practicing Lawyer, or Legal Consultant.
The Chief Justice of the Supreme Court established a code of conduct for mediators on June 17, 2016, through Decree of the Chief Justice of the Supreme Court No. 108/KMA/SK/VI/2016, which is expressly stated in the Appendix to Article 6 paragraph (3) as follows:
A mediator who is an advocate and a partner in the same law firm is prohibited from being a legal advisor to one of the parties in the dispute being handled both during and after the mediation process.
If the mediation process fails, the mediator cannot turn into an advocate representing the interests of either party in order to maintain the integrity of the profession and adhere to the principles of neutrality and confidentiality. In addition, because it is against their conscience, advocates can also refuse to provide legal advice and assistance.
Mediators may be subject to sanctions in the form of an oral reprimand, written reprimand, or removal of their name from the list of mediators if they violate these provisions.
Legal Basis:
- Law Number 18 the Year 2003 on Advocates;
- Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in Court;
- Decision of the Chief Justice of the Supreme Court Number 108/KMA/SK/VI/2016 of 2016 on Mediation Governance in Courts;
- Indonesian Advocate Code of Ethics.
Reference:
Hukumonline.com