According to Article 1 paragraph 1 of Perma 1/2016, mediation is a method of dispute resolution through a negotiation process with the aim of reaching an agreement between the parties with the assistance of a mediator. In short, the mediator’s job is to help the parties reach an agreement during the mediation process.

One of the advantages of resolving disputes through mediation is that it is conducted by someone who truly believes it can bring together the interests of all parties to the dispute. However, in mediation, there is no obligation for either party to follow the advice given by the mediator. The mediator has no power to impose a settlement on the parties. As the parties negotiate, the mediator helps them reach an agreement. This agreement is then written in an agreement or memorandum of understanding.

If two parties reach an agreement to call an independent third party to mediate the dispute, the mediator is considered the mediator. Based on Article 1 point 2 of Perma 1/2016, a mediator is a judge or other party who receives a mediator certificate as a neutral party who assists the parties in the negotiation process to determine various alternative dispute resolutions without deciding or imposing a settlement.

According to Perma 1/2016, a mediator is a person who performs his/her duties either within the court (judge) or from outside the court. The mediator judge is appointed by the head of the panel to conduct mediation and receives a decree (SK) from the head of the court.

Every mediator must have a certificate as a mediator after attending mediator certification training held by the Supreme Court or an institution that has been accredited by the Supreme Court indicating that a person has attended and passed a mediation certification course. However, in some cases, non-certified judges may also act as mediators. This may occur in cases where there are no or limited number of certified mediators, and a decision letter of the court president is required.

The appointment of a mediator depends on the context of the mediation. If the mediation is formal, such as in a court or mediation service institution, the appointment of the mediator is regulated by law. However, if it is a community mediation, the appointment of a mediator is not regulated by law. Basically, the mediator must fulfill the requirements of personal ability and ability to understand the dispute.

MEDIATOR DUTIES

Article 14 of Perma 1/2016, the duties of the mediator are:

1. Introduce themselves and provide an opportunity for the parties to introduce themselves to each other;
2. Explain the purpose, objectives, and nature of mediation to the parties;
3. Explain the position and role of the mediator who is neutral and does not make decisions;
4. Establishing rules for the implementation of mediation with the parties;
5. Explain that the mediator can hold a meeting with one party without the presence of the other party (caucus);
6. Develop a mediation schedule with the parties;
7. Fill in the mediation schedule form.
8. Provide an opportunity for the parties to convey problems and peace proposals;
9. Inventorying problems and scheduling discussions based on priority scale;
10. Facilitate and encourage the parties to:
    1. Explore and explore the interests of the parties;
    1. Seek various settlement options that are best for the parties; and
    1. Work together to reach a settlement;
11. Assist the parties in making and formulating a peace agreement;
12. Submit a report on the success, failure and/or inability of the mediation to the examining judge;
13. Declare that one or both parties are not in good faith and inform the examining judge of the case;
14. Other duties in carrying out its functions.

After the mediation succeeds in reaching a consensus, a peace agreement is issued and submitted to the examining judge to be confirmed in a Deed of Peace.

Legal Basis:

Supreme Court Regulation Number 1 Year 2016 on Mediation Procedures in Court.

Reference:

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