Professional Documents
Culture Documents
1 in
Economic and monetary
Sector
Dispute resolution refers to methods used by trained
neutrals to help people to communicate more clearly,
negotiate effectively, develop and evaluate solutions, or
resolve conflicts. Neutrals do not take sides or represent
the parties.
Dispute resolution offers a private and voluntary option
beyond court.
Dispute resolution can be used in a wide variety of
situations including unpaid bills, landlord/tenant disputes,
or neighbor conflict. It can also be very effective in
matters that involve many people, strong emotions, and
competing interests, like divorce, workplace conflict,
victims and offenders, or community controversies. Using
dispute resolution before conflict has escalated can be
helpful, but it can be very successful even when people
get stuck in complicated and intractable conflict.
2
Dispute resolution processes fall into two major types:
Adjudicative processes, such as litigation or arbitration, in which a judge, jury
or arbitrator determines the outcome.
Consensual processes, such as collaborative law, mediation, conciliation, or
negotiation, in which the parties attempt to reach agreement.
3
Dispute Resolution
4
INTERN’L-
Dispute
II ARBITRATION
Resolution
NEGOTIATION
Process
MEDIATION
Informal
Procedure FACILITATION
I
CONSILIATION
INFORMAL PROCEDURE
Negotiation is a discussion between two or more people
solving disagreements, deciding what to do, or making a
bargain. Negotiation may involve advocates or
representatives.
Mediation is an informal, voluntary process in which a
mediator facilitates negotiations between disputing parties.
The mediator's role is to help the parties find a mutually
acceptable solution to the dispute. In addition, mediation can
be faster and less expensive than arbitration or litigation. If
the parties agree to mediate, they will not give up any right
to arbitrate or litigate if they cannot reach a satisfactory
settlement. Mediation is a method for discussing problems
and exploring solutions with the help of a trained neutral.
Mediators help people communicate clearly and negotiate
effectively. Mediators do not take sides, give legal advice,
make decisions about resolutions or impose solutions.
Mediation is private and voluntary.
6
INFORMAL PROCEDURES
Facilitation involves a neutral who helps members of a group to
define and meet their goals, exchange ideas and information,
solve a problem or hold effective meetings.
Conciliation is the use of a third person who is asked to help
people reach an amicable resolution of their dispute. The
conciliator does not have the authority to impose a settlement,
and usually speaks with the parties separately.
7
1. A process of dispute resolution based
on negotiation
2. A mediator involved and admitted by
the disputing parties in the negotiation
3. Mediator is assisting the disputing
parties to achieve a resolution
4. The mediation aim at achieving or
resulting in an agreement that
admitted by the parties in order to end
the dispute.
8
1. A process of dispute resolution based
on negotiation.
2. A conciliator hold the right and
authority to express his opinion openly
to the parties and without taking sides
to any disputing party.
3. The conciliator does not have the authority to
impose a settlement on behalf of the disputing
parties.
4. Final decision is fully conclude by the
disputing parties based on the
conciliation and is written into an
agreement between the disputing
parties.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
Alternative Dispute Resolution (ADR) typically refers to
processes and techniques of resolving disputes that fall
outside of the judicial process (formal litigation – court).
(ADR) is extrajudicial processes such as arbitration and
mediation used to resolve conflict and potential conflict
between and among individuals, business entities,
governmental agencies, and in the public international law
context.
ADR generally depends on agreement by the parties to use
ADR processes, either before or after a dispute has arisen.
There are generally five categories of ADR. These are
negotiation, mediation, facilitation, Conciliation and
arbitration .
Courts are increasingly requiring some parties to utilize ADR
of some type, most often mediation, before permitting the
parties' cases to be heard. 10
ALTERNATIVE DISPUTE RESOLUTION (ADR)
Retired judges or private lawyers often become
arbitrators or mediators; however, trained and qualified
non-legal dispute resolution specialists form a growing
body within the field of ADR to facilitate settlement of
lawsuits
ADR has experienced steadily increasing acceptance and
utilization because of a perception of greater flexibility,
costs below those of traditional litigation, and speedy
resolution of disputes.However, some have criticized
these methods suggesting that extrajudicial dispute
resolution may not offer the fairest way for parties not
in an equal bargaining relationship, for example in a
dispute between a consumer and a large corporation. In
addition, in some circumstances, arbitration and other
ADR processes may become as expensive as litigation or
more so 11
ALTERNATIVE DISPUTE RESOLUTION (ADR)
12
FORMAL PROCEDURES
13
JUDICIAL (FORMAL) PROCEDURES
The most common form of judicial dispute resolution is
litigation. Litigation is initiated when one party files suit
against another.
In Indonesia, litigation is facilitated by the government
within Supreme, High, and District courts.
The proceedings are very formal and are governed by
rules, such as rules of evidence and procedure, which
are established by the legislature.
Outcomes are decided by an impartial judge, based on
the factual questions of the case and the application of
law.
The verdict of the court is binding, not advisory;
however, both parties have the right to appeal the
judgment to a higher court.
14
Act # 30 of 1999
Regarding Arbitration and alternative Dispute
Resolution.
Article 1:
(10). Alternative Dispute Resolution (ADR) is a
mechanism of settlement of disputes that falls
outside of the judicial process through procedures
agreed upon by the parties in the form of
consultation, negotiation, mediation, conciliation, and
judgement of experts.
15
ADR (Article 6)
On the basis of “good faith” Didasar by pulling aside litigation
process in the district court (sub article 1)
To be resolved in the meeting between the parties in the period
of as long as 14 days and the result of it shall be made in a written
agreement between the parties (sub article 3)
If the disputes cannot be settled then based on a written
agreement of the parties, the disputes will be settled by one or
more mediator or a trained experts (sub article 3)
If within 14 days the appointed mediator or experts fail to bring
the parties into a mutual agreement, or the mediator or ecpert fail
to bring the parties into a face to face meeting, the parties may
bring the disputes to an arbitration court or another ADR agency
to appoint a new mediator.
Upon the appointment of a new mediator by the arbitration
agency or another ADR the effort to settle the dispute shall be
started.
16
ADR (continued)
18
ARBITRATION
19
Act # 30 of 1999
Regarding Arbitration and alternative Dispute
Resolution.
Article 1:
(1) Arbitration is a method of dispute resolution in a
civil case that is undertake outside the general court
that is based on written agreement made by the
disputing parties.
(2) The disputing parties are legal subject according to
Civil law as well as Public Law.
(3) The arbitration agreement is a mutual consent
written in an agreement made by the disputing
parties prior to the existence of dispute, or a separate
agreement made by the parties after the dispute
arised.
20
ARBITRATION
(7). The arbitrator is a person or more chosen by the
disputing parties or appointed by the District Court
or an arbitration agency in order to make decision upon
certain dispute that is resolved through arbitration
mechanism.
(8). Arbitration is a mechanism adalah badan yang dipilih
oleh para pihak yang bersengketa untuk memberikan
putusan mengenai sengketa tertentu; lembaga tsb juga
dapat memberikan pendapat yang mengikat mengenai
suatu hubungan hukum tertentu dalam hal belum timbul
sengketa
ARBITRATION
22
The arbitration provision is included in
the main contract stating that the
dispute that might arise related to the
performance of the contract will be
settled through artbitration. This
Two Ways of Using “Pactum Compromittendo”.
Arbitation for The Arbitration provision is written in a
settlement of
separate contract, not included in the
dispute
main contract. This contract is
especially made when a dispute arises in
the implementation of the provisions of
the main contract. This kind of
agreement/contract is called “Akta
Kompromis”
ARBITRATION
23
24
TWO KINDS OF
ARBITRATIONS
ARBITRATION
25
ARBITRATION
26
To be valid and enforcible, the decision made by the arbitartor in
an arbitration must be registered in the District Court. The
Chairman of the District Court will
27 examine the decision based on
the following criteria:
28
BADAN ARBITRASE
MUAMALAT INDONESIA (BAMUI)
31
CHARACTERITIC RESOLUTION PROCESS
THROUGH LITIGATION:
1.Win-Lose Solution
2.Taking a very long time (Time consuming)
3.Require a special palce/building/office
4.High Cost (“Looking for a goat by sacrifying
a Cow”)
5.Use lawyer(s)
6.Very Bureauchratic
32
CHARACTERITIC RESOLUTION PROCESS
THROUGH ARBITRATION and other ADR:
1.Win-WIN Solution
2. Least time consuming
3.Least Cost (“does not Looking for a goat by
sacrifying a Cow”)
4.No Special place or building
5.Not Bureauchratic
33