Court-Based Mediation Procedures

The Supreme Court has issued Regulation No. 1 of 2008 to set out the procedures for court-based mediation. The underlying premise of the Regulation is that mediation is an alternative dispute mechanism available to the courts and the parties to a dispute that will allow for the dispute to be settled quickly and cheaply. The Regulation goes on to state that the mediation process is not only quicker and cheaper but provides satisfaction and fulfills the needs of feeling that justice has been done.

The procedures set out in the Regulation only apply to cases that are before the courts.

Generally, the fees for the mediation process are to be borne by the applicant. However, if the mediation reaches a mutually acceptable settlement then it is expected the division of these fees will form part of any agreement reached.

Mediation is to be undertaken by all parties to civil law suits that are lodged with the first instance courts. Nevertheless, the focus of mediation is clearly on commercial issues, labor disputes, consumer disputes, and objections to decisions of the Business Competition Supervisory Commission (KPPU).

Mediators are to be certified. To facilitate the parties ease in choosing a mediator the Chief Justice of the relevant court is to furnish a list of at least five mediator names to the parties. Where the chosen mediator is a judge then there is no fee for mediation services. However, if a private mediator is chosen then the responsibility for any fees charged by this mediator are to be borne by the relevant parties to the dispute.

All parties are to enter the mediation in good faith.

The mediator is to declare that the mediation has failed if one or both parties fail to attend to consecutive hearings. The other duties of the mediator are listed in the Regulation.

Expert witnesses and testimony can be used if both parties agree to the witness being called.

The Regulation is also explicit in stating that any evidence adduced during the mediation cannot be used as evidence in any subsequent trial if a settlement is not reached.

This Regulation replaces Supreme Court Regulation No. 2 of 2003.

The Regulation has been in force since 31 July 2008.