ALTERNATIVE DISPUTE RESOLUTION IN ENVIRONMENTAL DISPUTES TAKDIR RAHMADI JUSTICE

ENVIRONMENTAL STATUTES THE ENVIRONMENTAL STATUTE OF 1997 (PREDECESSOR) AND THE CURRENT ENVIRONMENTAL STATUTE OF 2009 PROVIDES THAT PARTIES IN ENVIRONMENTAL DISPUTE CAN RESOLVE THEIR DISPUTES THROUGH COURT OR OUT OF COURT. OUT OF COURT: NEGOTIATION, MEDIATION AND ARBITRATION. A RESEARCH (2011), LEIDEN UNIVERSITY AND THE INDONESIAN DEVELOPMENT PLANNING AGENCY: MEDIATION IS MORE OFTEN USED.

COURT-ANNEXED MEDIATION THE RULES OF THE SUPREME COURT CONCERNING COURT-ANNEXED MEDIATION, MEDIATION IS COMPULSARY USED BEFORE JUDGES TO HEAR PRIVATE OR CIVIL CASES, INCLUDING ENVIORNMENTAL CIVIL CASES, e.g. through tort action.

THE SUPREME COURT RULES CONCERNING COURT-ANNEXED MEDIATION PARTIES/LITIGANTS HAVE THE RIGHT TO CHOOSE MEDIATOR FROM THE LIST OF MEDIATORS AVAILABLE IN EVERY COURT OF 1 ST INSTANCES MEDIATORS: HEARING JUDGES/PANELIST, NON- HEARING JUDGES, UNIVERSITY LECTURERS, ADVOCATS/PRACTICING LAWYERS AND NON- LEGAL PROFESSIONS, e.g. medical doctors, economists, sociologists, anthropologists. JUDGE MEDIATOR: FREE OF CHARGE, NON-JUDGE MEDIATORS MAY HAVE FEES FROM PARTIES BASED UPON AGREEMENT.

QUALIFICATION OF COURT-ANNXED MEDIATORS A MEDIATOR MUST HAVE A CERTIFICATION. CERTIFICATION OBTAINED FROM ATTENDING MEDIATION TRAININGS. THE SUPREME COURT HOLDS MEDIATION TRAININGS FOR JUDGES. NGOS WHICH ARE ACCREDITED BY THE SUPREME COURT HOLD MEDIATION TRAININGS FOR NON-JUDGES.

MEDIATION PROCESS 40 WORKING DAYS SINCE FIRST MEDIATION SESSION AND CAN BE EXTENDED BY CONSENT OF PARTIES. IF PARTIES REACH SETTLEMENT, IT CAN INCORPORATED INTO A COURT DECISION. IF PARTIES FAIL TO REACH AGREEMENT, THE CASE GOES BACK TO HEARING PROCESS. MEDIATION CAN BE STILL PURSUED AFTER FAILURE OF FIRST COMPULSORY ATTEMPT BY CONSENT OF PARTIES.

LOW SUCCESS RATE ONLY 5 PERCENT OF TOTAL CASES CAN REACH SETTLEMENT AGREEMENTS. SOME POSSIBLE CAUSES: MANY ADVOCATES ARE RELUCTANT TO ENCOURAGE THEIR CLIENTS TO USE MEDIATION BECAUSE IT WILL REDUCE THEIR FEES, PARTICULARLY THOSE WHOSE THEIR FEES ARE ON HOURLY BASES. LITIGANTS ARE UNWILLING TO USE NON-JUDGE MEDIATORS BECAUSE THEY HAVE TO PAY MEDIATOR’S FEES, THEY WOULD PREFER TO CHOOSE JUDGE MEDIATORS, BUT JUDGE MEDIATORS ARE FULLY OCCUPIED WITH THEIR TASKS OF HEARING CASES SO THAT THEY LACK IN MOTIVATION TO BE GOOD MEDIATORS.

PLANNED POLICY MEASURES RESEARCH AND DEVELOPMENT CENTER OF THE SC PLANS TO CONDUCT RESEARCH INTO THE EFFECTIVENESS OF COURT-ANNEXED MEDIATION. REVISION OF THE SUPFEME COURT RULE MAY BE CONSIDERED AND INTRODUCING NEW PROVISIONS CONCERNING SANCTIONS TO PARTIES WHO ARE UNWILLING TO MEDIATE WITHOUT REASONABLE BASES.

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