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.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
25 August 2008
Draft Amendments to the Law on General Courts
This series of amendments has been proposed by the Legislation Agency of the DPR and these amendments reflect recent developments in judicial reform. A regular complaint of the Indonesian judiciary relates to its inconsistency in the decision making process and the frequent claims that justice is administered in favor of those who know best how to “tweak” the system.
A quick survey of judicial related news over the last 12 – 24 months highlights that the big issues of concern have been the manner in which general courts accept and administer cases, the court ‘mafia’, and the long-term stand-off between the Supreme Court and the State Audit Board with regard to the auditing of court or case fees. Each of these issues has been regulated in the Draft Bill.
The basic premise for the Bill is that there is a need for general courts to be seen as clean, accountable, transparent, and judicious in the provision of the court’s judicial, administrative, and financial functions. Furthermore, there is a need for greater supervision and discipline with respect to the behavior of judicial officers.
The Bill includes the insertion of five articles between Article 1 and Article 2, namely: 1A through 1E. In essence, these articles regulate that the general courts are based on the application of Pancasila, the involvement of external parties in case administration is prohibited, there is equality of the relevant parties before the law, the general courts may not refuse to hear matters, and there is to be full and equitable access to the courts.
Other interesting amendments to the Law see explicit reference that the Judicial Commission is responsible for the supervision of judges. However, this is clarified to state that the supervision must not impinge on the independence of judges to carry out their judicial functions of hearing and deciding cases.
The final amendment of note is that the Bill states unequivocally that general courts have a right to demand fees for the hearing of cases. The management and responsibility for this money would appear to require further regulation in a specific legal instrument for that purpose. However, the amendment leaves no doubt that the State Audit Board may audit these monies to ensure that the fees collected are not misused or abused.
It is not expected that these amendments will be subject to extensive debate as most of this debate has already been carried out in other public forums and the amendments appear to reflect the lowest common denominator that all stakeholders seem to be resigned to accepting.
The amendments will, if passed in this form, serve to strengthen the credibility of the general courts and the belief that judicial reform in Indonesia is a serious undertaking which has considerable support from the courts themselves.
A quick survey of judicial related news over the last 12 – 24 months highlights that the big issues of concern have been the manner in which general courts accept and administer cases, the court ‘mafia’, and the long-term stand-off between the Supreme Court and the State Audit Board with regard to the auditing of court or case fees. Each of these issues has been regulated in the Draft Bill.
The basic premise for the Bill is that there is a need for general courts to be seen as clean, accountable, transparent, and judicious in the provision of the court’s judicial, administrative, and financial functions. Furthermore, there is a need for greater supervision and discipline with respect to the behavior of judicial officers.
The Bill includes the insertion of five articles between Article 1 and Article 2, namely: 1A through 1E. In essence, these articles regulate that the general courts are based on the application of Pancasila, the involvement of external parties in case administration is prohibited, there is equality of the relevant parties before the law, the general courts may not refuse to hear matters, and there is to be full and equitable access to the courts.
Other interesting amendments to the Law see explicit reference that the Judicial Commission is responsible for the supervision of judges. However, this is clarified to state that the supervision must not impinge on the independence of judges to carry out their judicial functions of hearing and deciding cases.
The final amendment of note is that the Bill states unequivocally that general courts have a right to demand fees for the hearing of cases. The management and responsibility for this money would appear to require further regulation in a specific legal instrument for that purpose. However, the amendment leaves no doubt that the State Audit Board may audit these monies to ensure that the fees collected are not misused or abused.
It is not expected that these amendments will be subject to extensive debate as most of this debate has already been carried out in other public forums and the amendments appear to reflect the lowest common denominator that all stakeholders seem to be resigned to accepting.
The amendments will, if passed in this form, serve to strengthen the credibility of the general courts and the belief that judicial reform in Indonesia is a serious undertaking which has considerable support from the courts themselves.
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