Resolving disputes
Given the notorious reputation of the judicial system as one of the most corrupt institutions in Indonesia, which in turn is internationally perceived as one of the most corrupt countries in the world, last week's opening of an independent mediation center should be welcomed as an alternative dispute resolution mechanism.
As the experiences of most other countries, even those with more efficient and credible court systems, have shown, an effective resolution mechanism for civil and commercial disputes is essential in preventing major financial hardships and inconvenience.
Little wonder that in most industrialized nations the business of mediation has thrived as much faster, more amicable and cheaper resolution mechanisms for almost all kinds of civil and commercial disputes, such as those involving contracts, employment, divorce, personal injury and harassment, have emerged.
Chief economics minister Dorodjatun Kuntjoro-jakti, who officially opened the Indonesian Mediation Center, should be fully aware of the frustration felt by businesspeople, particularly foreign ones, toward the country's court system. In fact, the corrupt judicial system has long been one of the biggest barriers to the new investment that is badly needed to strengthen the economic recovery.
Different from litigation and arbitration, which involve judges or arbitrators rendering binding decisions in open proceedings, mediation is completely consensual and non- adjudicatory as the process is based on the mutual agreement of both disputants, who are also responsible for selecting the mediator.
Most importantly, the proceedings are much faster and, because the disputants do not have to hire lawyers, the process is much cheaper. Businesses also often prefer independent mediation because the proceedings are confidential, so the disputants do not have to air their laundry in open court. What disputants say during the mediation sessions cannot legally be revealed outside of the proceedings or used later in a court of law.
Unlike arbitration or litigation, which may take years due to the overloaded courts and the long process of appeal, mediation can be scheduled and completed within days or weeks. Of no less importance, as the experiences of mediation councils in other countries have shown, disputants who have freely arrived at their own solutions through mediation are more likely to follow through on the results. Litigation or arbitration often causes permanent animosity between the disputants.
As independence and credibility are the basic assets required for a mediation council to be effective, the Indonesian Mediation Center should from the outset focus its attention and resources on these two principles.
The first requirement for independence is that the center should be financially autonomous, meaning that its financial resources should be adequate for it to hire experienced experts in various fields. Certainly, the credibility of the center will depend on the reputation, integrity and technical competence of its mediators.
As a completely new institution, the center needs to launch a campaign to educate the public, particularly the business community, about the advantages of mediation.
In the long run, though, the effectiveness of the mediation center will depend on how the Supreme Court integrates the mediation process, as an alternative dispute resolution mechanism, into the country's judicial system.